Section 215: Access to records and other items under the Foreign Intelligence Surveillance Act.

Section 215 grants the F.B.I. considerably more power to access business records. Under current law, 18 U.S.C. §§§1861-3, law enforcement already has the power to obtain records of common carriers, public accommodation facilities, physical storage facilities and vehicle rental facilities for foreign intelligence purposes.

The authorization granted under 215 is excessive. Instead of being limited to travel-related businesses, the F.B.I. now may access all documents and things maintained by all businesses. The type of sensitive information that can be disclosed under Section 215 includes “medical records, mental health records, financial records, video rental records, fingerprints, DNA samples from a person's hair, employment records, records of employment-based drug testing, and immigration records maintained by non-profit agencies. “

Section 215 does not require the person from whom the records are sought to be the agent of a foreign power. It requires the judge to rubber stamp his or her approval of a request made of any person or business to produce any books, records, documents or items, so long as the F.B.I. submits an application certifying that the request is made in connection with a foreign intelligence investigation, or an investigation to protect against international terrorism or clandestine intelligence activities.

Until now, much of the information covered by Section 215 has been protected by privacy legislation, such as the Right to Financial Privacy Act, which was enacted with the intent of protecting highly sensitive information. Section 215 will take precedence over such statutes and eviscerate such privacy interests.

Persons receiving orders under this section are effectively gagged and may not disclose that they have been served. The person or business whose records are obtained is not notified. There is no requirement as exists under current law that law enforcement be conducting a criminal investigation before seeking access to the records. There is no reporting requirement to the Court or Congress of the actual documents seized or their relevancy. Only the number of applications sought and granted must be reported.