Let the Sun Set on PATRIOT - Section 215:

"Access to Records and Other Items Under the Foreign Intelligence Surveillance Act"

In March 2006, the sunsetting provisions were renewed. Read here for analysis.

What PATRIOT 215 Does

Section 215 allows the FBI secretly to order anyone to turn over business records or any other "tangible things," so long as the FBI tells the secret Foreign Intelligence Surveillance Act (FISA) court that the information sought is "for an authorized investigation...to protect against international terrorism or clandestine intelligence activities." These demands for records come with a "gag order" prohibiting the recipient from telling anyone, ever, that they received a Section 215 order.

How PATRIOT 215 Changed the Law

Secret orders to turn over business records were available from the FISA court before the PATRIOT Act. However, this extreme power secretly to demand private records was checked by two key safeguards.

First, the FBI could only get a few types of records that were of particular use in investigating terrorists and spies -- records belonging to hotels, motels, car and truck rental agencies, and storage rental facilities. Second, the FBI had to present to the FISA court "specific and articulable facts giving reason to believe that the person to whom the records pertain[ed]" was a spy or terrorist.

Section 215 removed these safeguards. Now, the FBI can use a secret order to get anything, "including books, records, papers, documents, and other items." Nor does the FBI still need actual facts to show that you may be a spy or terrorist. Instead, these secret orders can now be used to investigate anyone, even a U.S. citizen not suspected of any crime, so long as the FBI certifies to the FISA court that the records are sought for a terrorism or espionage investigation. The FISA court must issue the order if the FBI so certifies, even when there are no facts to back it up.

Why PATRIOT 215 Should Sunset

Section 215 violates your Constitutional right to privacy under the Fourth Amendment, by allowing the FBI to search through your most personal information -- including financial records, medical records, student records, even your library records -- without ever having to prove that they have probable cause to suspect you of a crime, or even that your records are relevant to an investigation.

Furthermore, under Section 215 the FBI can investigate United States persons (citizens and legal residents) based at least in part on their exercise of First Amendment rights, and can investigate non-U.S. persons based solely on their free speech activities or religious practices. You could be investigated based on the political or religious meetings you attend, the websites you visit or even the books that you read. As a result, Americans may be chilled from exercising these Constitutional rights. Already, attendance at and donations to mosques have dropped significantly, as many Muslims reasonably fear that they will be targeted for investigation based solely on their religious beliefs.

Finally, and unlike grand jury subpoenas used in non-FISA investigations, there is no way for someone served with a Section 215 order to go to court and challenge its legality. Combined with the FISA court's lack of discretion and oversight when it comes to Section 215 orders, this is a recipe for abuse, giving the FBI essentially unchecked power to scrutinize the personal lives of innocent Americans.


Of the PATRIOT provisions scheduled to sunset, Section 215 is the most dangerous to our civil liberties. EFF strongly opposes its renewal, and urges you to do the same. EFF also supports the Security and Freedom Ensured Act (SAFE Act, § 1709/HR 3352), a PATRIOT reform bill that would, amongst other things, restore the requirement that the FBI have specific facts indicating you are a spy or terrorist before using Section 215 to get your records.