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The USA PATRIOT Act was introduced less than a week after September 11, 2001, where USA PATRIOT stands for "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism." It was signed into law on October 26, 2001, broadly expanded law enforcement's surveillance and investigative powers, and amended more than 15 different statutes, including the Electronic Communications Privacy Act of 1986 (ECPA), the Computer Fraud and Abuse Act (CFAA), the Foreign Intelligence Surveillance Act (FISA), and the Family Education Rights and Privacy Act (FERPA).
Among other things, the USA PATRIOT Act's intent was to update wiretap and surveillance laws for the Internet age, addressing real-time communications and stored communications (email, voice mail), and to give law enforcement greater authority to conduct searches of property.
The USA PATRIOT Act reauthorization legislation was signed into law by President Bush on March 9, 2006, and differs somewhat from the original legislation. A sunset of December 31, 2009, was established for Section 215 of the USA PATRIOT Act.
Libraries are key sources of information on all kinds of subjects and from all perspectives for their communities. Now as always in our history, reading is among our greatest freedoms. The written word is the natural medium for the new idea and the untried voice from which come the original contributions to social growth.
Libraries provide a place to exercise intellectual freedom: a free and open exchange of knowledge and information where individuals may exercise freedom of inquiry as well as a right to privacy in regards to information sought. Privacy is essential to the exercise of free speech, free thought, and free association; and, in a library, the subject of users' interests should not be examined or scrutinized by others.
ALA considers that sections of the USA PATRIOT ACT are a present danger to the constitutional rights and privacy rights of library users. Libraries do cooperate with law enforcement when presented with a lawful court order to obtain specific information about specific patrons. The library profession is concerned with provisions in the USA PATRIOT Act that go beyond the traditional methods of seeking information from libraries.
For a summary of the USA PATRIOT Act and Libraries see "What You Should Know About the USA PATRIOT Act." For additional information on how the USA PATRIOT Act affects intellectual freedom, visit the ALA's Office for Intellectual Freedom.
ALA’s Resolution on the USA PATRIOT Act and Resolution Reaffirming the Principles of Intellectual Freedom in the Aftermath of Terrorist Attacks.
What can you do next? Visit the Bill of Rights Defense Committee's page on Resources for Defending Civil Liberties for guidelines.
Standards
The standards under which the FBI can obtain library records in the course of an investigation are slightly more stringent under the new law. Under the original PATRIOT Act, the FBI had only to assert that records were "sought" for an authorized investigation "to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities." Under the new legislation, the FBI can obtain library records of anyone when they present facts showing "reasonable grounds" to believe that the records are "relevant" to an authorized investigation as described above.
Individualized Suspicion
The reauthorized statute brings in SAFE Act language regarding individualized suspicion, but it does not require the FBI to show such individualized suspicion and so it leaves the door open to wide search order requests. The law now says that the records sought will be "presumptively relevant" (i.e., nothing further needed) if the FBI shows that they pertain to:
The reauthorized law also follows the SAFE Act language in requiring records or other things to be described with "sufficient particularity" to allow them to be identified –reducing the danger that the FBI will engage in fishing expeditions in library or bookstore records.
It also states that the order "may only require the production of any tangible thing if such thing can be obtained with a subpoena duces tecum ( a writ or process including a clause requiring the witness to bring with him and produce to the court, books, papers, etc., in his hands, tending to elucidate the matter in issue)issued by a court of the United States in aid of a grand jury investigation or with any other order issued by a court of the United States directing the production of records or other tangible things," again putting some limits on the scope of the order
Approval
The law requires the Director of FBI, or (if delegated) the Deputy Director of the FBI or the FBI Executive Assistant Director for National Security, to personally approve any request for records from a library or bookstore or for firearms, tax return, educational or medical records.
Disclosure
The reauthorized PATRIOT Act reforms the original legislation by allowing disclosure of receipt of a Section 215 order to "any person to whom disclosure is necessary to comply with such order." It also explicitly allows a recipient to consult an attorney and to obtain legal advice or assistance "with respect to the production of things in response to the order;" and also allows disclosure to "other persons as permitted" by the Director of the FBI or the Director’s designee.
Further, there is now no requirement that a recipient of a Section 215 order inform the FBI of the identity of an attorney to whom disclosure was or will be made. But, upon the request of the Director of the FBI, a recipient is required to identify anyone besides an attorney to whom a disclosure is made or will be made.
Challenges
The reauthorization legislation allows a recipient to challenge a Section 215 order. But that challenge can occur only in a special "petition review panel" of the FISA court—and challenges can only be filed in order to determine the "lawfulness" of the order. It is not clear why a FISA review panel would find that a FISA judge issued an unlawful order. The reauthorization legislation also allows a Section 215 order recipient to challenge the gag order attached to the subpoena. But recipients may challenge only after one year. And the FISA judge may only overturn the gag if:
The certification of the government to these possibilities is to be taken as conclusive.
Minimization Requirements
The statute now requires the Attorney General to adopt “specific minimization procedures” that:
Reports
The reauthorized PATRIOT Act requires that the DOJ submit unclassified reports annually in April to the House and Senate Committees on the Judiciary, the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence. These reports will include information on the total number of orders either granted, modified, or denied when the application or order involved the production of library circulation records, library patron lists, book sales records, or book customer lists; as well as firearm sales records; tax return records; educational records; or medical records containing information that would identify a person.
It also requires the DOJ to report “to Congress” in April of each year a report on:
Audit
The Inspector General of the DOJ is now required to perform a comprehensive audit of the effectiveness and use, including any improper or illegal use, of the investigative authority provided to the FBI under Title V of the Foreign Intelligence Surveillance Act of 1978 (Section 215 of the USA PATRIOT Act amended Section 501 of the Foreign Intelligence Surveillance Act of 1978).
Standards
The reauthorized PATRIOT Act now includes language asserting that libraries, when functioning in their traditional roles – including providing Internet access--are not subject to NSLs. However, the language states that libraries are subject if the library "is providing the services defined under" Section 2510(15) of title 18, which says "electronic communication service" means any service which provides to users thereof the ability to "send or receive wire or electronic communications." A colloquy conducted by Senators Sununu and Durbin on February 16 th, 2006 clarified the legislative history and intent of the provision: "a library that has Internet access, where a person can find an Internet e-mail service, is not a communications service provider; therefore, it would not fall under the purview of the NSL provision in 18 U.S.C. 2709."
Disclosure
The reauthorized PATRIOT Act allows disclosure of receipt of a National Security Letter to "any person to whom disclosure is necessary to comply with such order." It also explicitly allows a recipient to consult an attorney and to obtain legal advice or assistance "with respect to the production of things in response to the order;" and also allows disclosure to "other persons as permitted" by the Director of the FBI or the Director's designee.
Following the language of the SAFE Act, the law now says that if the Director of the FBI or his designee (in a position not lower than Deputy Assistant Director at the Bureau headquarters or a Special Agent in Charge in a Bureau field office designated by the Director), certifies that disclosure of a National Security Letter would harm national security, interfere with an investigation, interfere with diplomatic relations, or endanger life or physical safety, receipt of the Letter may not be disclosed to other than those persons to whom disclosure is necessary to comply with such order, or to an attorney to obtain legal advice or assistance with respect to the request. Persons to whom disclosure is made are subject to the same non-disclosure provisions.
The statute establishes new penalties for "knowingly and with intent to obstruct an investigation or judicial proceeding" by violating the gag order. Penalties include a prison term of up to 5 years. However, language in the original legislation establishing a penalty of up to one year in prison for "knowingly and willfully" violating the gag order was removed .
Challenges
A recipient of a National Security Letter is allowed challenge the request in a U.S. District Court. The court may set aside the NSL order if it is "unreasonable" or "oppressive," or "otherwise unlawful."
The statute now allows a challenge to the gag order in a U.S. District Court. However, if the government certifies that a challenge would harm national security, interfere with an investigation, interfere with diplomatic relations, or endanger life or physical safety, that certification must be treated as "conclusive." If a year has elapsed since issuance of the order, the issuing official must re-certify--but certification is still conclusive.
Enforcement
The law allows the government to go to a U.S. District Court to seek enforcement of the NSL, makes violation of the enforcement order punishable as contempt, and states that the court must close any contempt hearing to the extent necessary to prevent the unauthorized disclosure of a request.
March 7, 2006
The House of Representatives voted (280-138) to pass legislation reauthorizing the USA PATRIOT Act. In spite of years of work done by ALA members, our allies in the civil liberties arena, and dedicated Members of Congress, the legislation does not include most of the meaningful reforms we hoped would restore the privacy rights of America's library users.
See ALAWON Vol. 15 No. 34 for details on the vote.
March 2, 2006
The Senate voted 89-10 to pass legislation that reauthorizes the PATRIOT Act and fails to restore key library patron protections.
The Senators who voted against the flawed reauthorization bill are:
Sen. Akaka (D-HI)
Sen. Bingaman (D-NM)
Sen. Byrd (D-WV)
Sen. Feingold (D-WI)
Sen. Harkin (D-IA)
Sen. Jeffords (I-VT)
Sen. Leahy (D-VT)
Sen. Levin (D-MI)
Sen. Murray (D-WA)
Sen. Wyden (D-OR)
March 1, 2006
The Senate passed S. 2271. Ninety-five Senators voted Yea; four Senators [Byrd (D-WV), Feingold (DWI), Harkin (D-IA) and Jeffords (I-VT)] voted No. Senator Inouye (D-HI) did not vote.
February 24, 2006
The Senate voted to limit debate on S. 2271 and in so doing denied Senator Feingold the opportunity to introduce amendments to the legislation that would have improved reader privacy protections. Feingold's proposals are based on the SAFE (Security and Freedom Ensured) Act, S. 1389.
February 16, 2006
The Senate voted for cloture (96 Yeas to 3 Neas with 1 not voting) on the PATRIOT Act renewal. The vote for cloture ended the debate on the Senate floor over disputed provisions of the PATRIOT Act in favor of the compromise legislation that adds limited civil liberties protections to the law. Sens. Feingold (D-WI), Byrd (D-WV), and Jeffords (I-VT) voted against cloture, and Sen Vitter (R-LA) did not vote.
Sen. Feingold said of the compromise, " The modifications to the conference report agreed to by the White House do contain one other purported change to one of the NSL statutes. This modification states that the FBI cannot issue an NSL for transactional and subscriber information about telephone and Internet usage to a library unless the library is offering "electronic communication services" as defined in the statute. But that just restates the existing requirements of the NSL statute, which currently applies only to entities - libraries or otherwise - that provide "electronic communication services." So that provision has no real legal effect whatsoever. Perhaps that explains why the American Library Association issued a statement calling this provision a "fig leaf" and expressing disappointment that so many Senators have agreed to this deal."
After the cloture vote, Sen. Richard Durbin (D-IL) entered a colloquy with Sen. John Sununu (R-NH) designed to clarify the impact on the NSL requirement on libraries. During the discussion Sen. Sununu said of the requirement, " What we did in this legislation is add clarifying language that states that libraries operating in their traditional functions: lending books, providing access to digital books or periodicals in digital format, and providing basic access to the Internet would not be subject to a national security letter. There is no National Security Letter statute existing in current law that permits the FBI explicitly to obtain library records. But, as was indicated by the Senator from Illinois, librarians have been concerned that existing National Security Letter authority is vague enough so that it could be used to allow the Government to treat libraries as they do communication service providers such as a telephone company or a traditional Internet service provider from whom consumers would go out and get their access to the Internet and send and receive e-mail. Section 5 clarifies, as I indicated, that a library providing basic Internet access would not be subject to a national security letter, simply by virtue of making that access available to the public."
Sen. Durbin, pressing for further clarification said, " So a library that has Internet access, where a person can find an Internet e-mail service, is not a communications service provider; therefore, it would not fall under the purview of the NSL provision in 18 U.S.C. 2709. It is a critically important distinction...Libraries are fundamental to America..." Sen. Durbin also thanked librarians for their, "heroic efforts to amend the PATRIOT Act in a responsible way..." ( Congressional Record; February 16, 2006 (Senate) page S1379-S1403.)
View the full colloquy (PDF)(Word)
February 9, 2006
Four Republican Senators (John Sununu - NH. Lisa Murkowski - AK, Chuck Hagel - NE, and Larry Craig - ID), who had joined in the threat to filibuster the House Conference Report on the Reauthorization of the USA PATRIOT Act, announced a deal they had negotiated with the White House. According to informed sources on the Hill, the White House and Republican leadership now will be able to garner enough votes to ensure passage in the Senate.
The specifics include:
ALA opposes this proposal and continues to call on Congress to pass the SAFE Act, which would help cure many of the problems that are left unfixed in this new proposal.
The final day before its 2005 summer recess, the Senate passed S. 1389 (the USA PATRIOT Improvement and Reauthorization Act of 2005) on unanimous consent (no debate, no amendments, no roll call vote). The bill adds to the USA PATRIOT Act many of the safeguards for library and reader privacy that have been sought by the library community since the passage of the law in 2001, including tougher requirements for searching library records under Section 215.
The vote was a surprise, coming just one week after the Senate Judiciary Committee passed the S. 1389 and the House passed H.R. 3199 and just when everyone thought the Senate was rushing out the door for its summer recess. The two bills will now need to be reconciled by a Conference Committee. The Senate conferees have been named; the House conferees have not to date. Conference is expected to begin at the staff level the week of September 26th.
Here is a brief comparison of the bills.
Sunsets
Both bills reauthorize sections of the PATRIOT Act that would expire at the end of this year. The House bills extends the sunset period for Section 215 to 2015; the Senate to 2009. The shorter sunset is preferable because it will cause more oversight by Congress.
Section 215: Standard for Obtaining Order
The House legislation allows the FBI to obtain library records of anyone whenever they are "relevant" to a counter-terrorism or counter-espionage investigation.
The Senate bill requires the FBI to give facts showing reason to believe that the records sought are "relevant to" counter terrorism or counter intelligence investigation, AND that items "pertain to" a foreign power, agent of a foreign power, or person in contact with a suspected agent or are "relevant to" the activities of a suspected agent who is the subject of the investigation. It also requires the FISA Court to "find" these facts (i.e., not just rubber-stamp the request). The Senate bill also requires records or other things to be described with "sufficient particularity" to allow them to be identified - reducing the danger that that the FBI will engage in fishing expeditions in library or bookstore records.
Required Approval
The House legislation requires the Director of FBI to personally approve any request for records from a library. The Senate legislation requires the personal approval of Director or Deputy Director of the FBI for library, bookstore, firearms or medical records.
Consulting an Attorney
Both bills allow disclosure of receipt of a Section 215 order to to "any person necessary to produce the tangible things pursuant to an order under this section" or "an attorney to obtain legal advice." The Senate version allows a recipient to consult an attorney to obtain legal advice "in response to an order under this section -- in other words, to obtain advice on challenging it, etc. The House version only "with respect to an order under this section" -- in other words, only to comply with the order.
Challenges -- Order
Both bills allow the recipient of a Section 215 order to challenge the order. The House version allows this only in special "petition review panel" of the FISA court and only to determine "legality" of the order.The Senate bill gives recipient of the order the right to challenge both the order itself (on same basis as for a grand jury subpoena), in the FISA Court.
Challenges -- Gag Order
The House version does not allow any challenge of the secrecy/gag order. The Senate version allows challenge of the secrecy/gag order, but only in the FISA court.
Reporting
The Senate bill improves the reporting required of the Justice Department. It requires that the DOJ report annually on the total number of applications made for Section 215 orders approving requests for the production of tangible things, and the total number of orders either granted.