Congress to Ashcroft: Has FBI Requested Bookstore Records?

The House Judiciary Committee wants to know how many subpoenas the Justice Department has issued to bookstores, libraries, and newspapers under a provision of the USA PATRIOT Act.

U.S. Attorney General John Ashcroft

In a 12-page letter sent on June 13, Representative James Sensenbrenner Jr. (R-WI), the chair of the Judiciary Committee, and Representative John Conyers Jr. (D-MI), the ranking Democrat on the committee, asked U.S. Attorney General John Ashcroft to answer questions about how the Justice Department is using the investigatory powers it received under 50 provisions of the PATRIOT Act. The letter asks for written answers by July 9 and indicates that hearings will follow.

Under Section 215 of the act, the FBI can obtain a court order for bookstore records, papers, documents, and other items from a special federal court, sometimes called the "spy court." The court's judge makes his or her decision "ex parte," meaning there is no opportunity for a bookseller or her lawyer to object in court. And the law prevents booksellers from disclosing "to any other person" that they have received an order to produce documents.

The committee letter also asked whether any safeguards have been adopted to prevent an abuse of the power to search bookstore records. American Booksellers Foundation for Free Expression President Chris Finan welcomed the Judiciary Committee inquiry. "Booksellers and libraries are worried that Section 215 will have a chilling effect on free speech," Finan told BTW. "These are the questions that we have wanted to ask."

With respect to the business records section of the act, the letter asks how many court orders have been issued to bookstores, libraries, and newspapers. (Reporters' notes can also be subpoenaed under the PATRIOT Act even if they are protected by state "shield laws" designed to protect their confidentiality.)

The letter also asks whether the Justice Department has put in place any safeguards such as requiring supervisory approval before the records are sought or "requiring a determination that the information is essential to an investigation and could not be obtained through any other means." The letter is available online at www.house.gov/judiciary/ashcroft061302.htm.

ABFFE has been active in defending the confidentiality of book purchase records. Most recently, ABFFE supported Denver’s Tattered Cover Book Store in its successful fight to prevent police from obtaining the records of one of the store’s customers. Citing the danger of a chilling effect, the Colorado Supreme Court quashed a search warrant that had been issued to the Tattered Cover in a unanimous decision issued April 8. (For more on the Tattered Cover case, click here.)

On April 25, the six-month anniversary of the passage of the PATRIOT Act, ABFFE joined members of the Free Expression Network (FEN) in issuing a statement that warned that some of the provisions of the law threaten First Amendment rights. "The hasty measures that were taken in the immediate wake of the attacks of September 11 should now be reconsidered," the FEN statement said. "We should reaffirm the right to free expression, open government, discussion, and debate that have kept us strong for 200 years."

In addition to ABFFE, the statement was signed by the American Civil Liberties Union, the Electronic Privacy Information Center, the National Coalition Against Censorship, PEN American Center, and People for the American Way, among others. The statement is available on the FEN Web site, www.freeexpression.org.