New Bills in Congress Would Scale Back USA PATRIOT Act

Nearly two years after the USA PATRIOT Act was hastily passed, opposition to it—or at least to some of its clauses—has grown significantly. Not only has there been substantial support for the Freedom To Read Protection Act, introduced in March by Rep. Bernie Sanders (I-VT), other legislators introduced bills in late July and early August that go even further.

Senators Lisa Murkowski (R-AK) and Ron Wyden (D-OR) have introduced the Protecting the Rights of Individuals Act. Also, Sen. Russ Feingold (D-WI) has introduced the Library, Bookseller, and Personal Records Privacy Act. Both address Section 215 of the Patriot Act, as does the Sanders bill, but are more extensive.

The Murkowski-Wyden proposal would return the standards for the FBI to search libraries to those that applied pre–Patriot Act. Also, it would toughen the requirements for the FBI to obtain a National Security Letter, which the FBI is more likely to use than Section 215 to go into libraries, by clarifying that a library shall not be treated as a "wire or electronic communication service provider."

Feingold's bill also would restore a pre–Patriot Act requirement that the FBI make a factual, individualized showing that the records sought pertain to a suspected terrorist or spy and that the FBI could not obtain library records concerning individuals who are not suspected terrorists. Feingold's bill would allow National Security Letters to be used at libraries but would require an individualized showing by the FBI of how the records of Internet usage pertain to a suspected terrorist or spy.

While an effort in July to attach the Freedom To Read Protection Act to an FBI spending bill failed on procedural grounds, that language may be added via another avenue. Representative Sanders added an amendment to H.R. 2800, the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 2004. While that would only affect State Department requests to the FBI, as the legislation proceeds, Sanders will attempt to have the language amended to have a broader impact.

Congress seems willing to revisit the Patriot Act. The House of Representatives passed an amendment by Rep. Butch Otter (R-ID) that would effectively stymie another controversial section of the act, Section 213. That section permits federal agents to obtain "sneak and peek warrants," which prevent those searched from reviewing the warrant for illegalities.

The first lawsuit against the Patriot Act, filed July 20, targets Section 215, the subject of criticism from librarians, booksellers, and legislators. The lawsuit, filed by the American Civil Liberties Union (ACLU) in U.S. District Court in Michigan, has as plaintiffs not libraries but six mostly Arab and Muslim American groups.

The suit says that Section 215 violates the Constitution and "vastly expands the power of the [FBI] to obtain records and other 'tangible things' of people not suspected of criminal activity." The plaintiffs include the Muslim Community Association of Ann Arbor, American-Arab Anti-Discrimination Committee, Arab Community Center for Economic and Social Services, Bridge Refugee and Sponsorhip Services, Council on American-Islamic Relations, and Islamic Center of Portland, Masjed As-Saber.

Despite criticism from the public and legislators, Attorney General John Ashcroft has defended the Patriot Act. "Unfortunately, some Americans have been told myths about this law, a myth that [police] can unlawfully visit local libraries and check the reading list of ordinary Americans," Ashcroft said in a speech at a conference in Arlington County, VA.

According to National Journal's Technology Daily, Ashcroft claimed that the Patriot Act preserved traditional checks on library, bookstore, and business records because a "federal judge must first issue a warrant" and because it is for "foreign intelligence that doesn't affect U.S. persons."

Previously, the ACLU had issued a report saying that such statements are wrong, that the law does in fact change procedures (see Late Bulletins , LJ 8/03, p. 13).