ALA Criticizes DoJ’s Privacy Stance

Letter of law differs from Senatorial intent in colloquy

By Norman Oder -- Library Journal, 2/1/2007

The American Library Association (ALA) in late December criticized the Department of Justice (DoJ) for “fail[ing] to comprehend the role of libraries and the importance of privacy in the United States.” ALA president Leslie Burger pointed to a written response to the U.S. Senate from Federal Bureau of Investigation (FBI) director Robert S. Mueller regarding whether libraries should be subject to National Security Letters (NSLs).

The issue is essentially a dispute about interpretation; read literally, as the FBI does, the reauthorization of the USA PATRIOT Act encompasses libraries as “electronic communication services.” However, the stated intention of leading Senators voting for the reauthorization was to exempt libraries.

The FBI submitted Mueller’s answers in response to written questions after the May 2, 2006, hearing before the Senate Committee on the Judiciary regarding FBI oversight.

Colloquy clarification

Committee chair Arlen Specter noted that the reauthorization “is intended to clarify that the FBI may not issue National Security Letters to libraries that are functioning in their traditional role, including but not limited to, lending books, providing access to books or periodicals in digital form, and providing basic access to the Internet. During the debate on the USA PATRIOT Act Additional Reauthorizing Amendments Act, Senator Sununu, the legislation’s author and lead sponsor, and I engaged in a colloquy on the floor of the Senate to make clear Congressional intent in this respect.”

In the colloquy between Senators John Sununu (R-NH) and Dick Durbin (D-IL), Sununu stated, “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.” Durbin pointed out that just because a library offers access to the Internet and thus Internet-based e-mail services does not make it a communications service provider; similarly, he said that “a gas station that has a pay phone isn’t a telephone company.”

FBI statement

Mueller responded, “In the context of this particular question regarding libraries, an NSL can only be served on an entity that is an electronic communication service provider. The FBI has always understood an electronic communication service provider to be an entity that provides electronic communication services as defined by 18 U.S.C. 5 2510(15). Thus, a library is only subject to an NSL if it provides electronic communication services.”

The law defines “electronic communication service” as “any service which provides to users thereof the ability to send or receive wire or electronic communications.”