Section 215 of the Foreign Intelligence Surveillance Act After the 1978 passage of the Foreign Intelligence Surveillance Act (FISA) it became apparent that the law left significant gaps in intelligence collection authority. While the Government had the power in a criminal investigation to compel the production of records with a grand jury subpoena, it lacked similar authority in a foreign intelligence investigation. How Section 215 amends FISA A provision was added to FISA in 1998 to provide such authority, and was amended by Section 215 of the USA-PATRIOT Act passed shortly after 9/11. This provision enables request to the FISA Court for orders requiring production of documents or other tangible things when they are relevant to an authorized national security investigation such as an investigation to protect against international terrorism or clandestine intelligence activities. Use of Business Records Under Section 215 While the details of FISA-related investigations, including requests for business records, are classified, under Section 215 records can be produced only if they are the type of records that could be obtained pursuant to a grand jury subpoena or other court process. Obtaining business records is a long-standing law enforcement tactic. Ordinary grand juries for years have issued subpoenas to all manner of businesses for records relevant to criminal inquiries. Safeguards protecting civil liberties Section 215 contains a number of safeguards that protect civil liberties, beginning with its narrow scope. It can only be used to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities. It cannot be used to investigate ordinary crimes, or even domestic terrorism. Section 215 actually is more protective of privacy than the authorities for ordinary grand jury subpoenas. A court must explicitly authorize the use of section 215 to obtain business records. By contrast, a grand jury subpoena is typically issued without any prior judicial review. Section 215 expressly states that a U.S. person cannot be investigated solely on the basis of activities protected by the First Amendment to the Constitution of the United States. Section 215 provides for congressional oversight. Every six months, the Attorney General must “fully inform” Congress on how it has been implemented.
Posted on: Sat, 24 Aug 2013 22:02:42 +0000
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