Democrats Seem Receptive to Patriot Act Adjustments

Leahy bill provides greater protection for library records

Norman Oder -- Library Journal, 09/23/2009

• Two reform bills saluted by ALA
• Leahy's bill would require government to prove relevance
• Would eliminate one-year ban on challenge to gag orders

Three Democratic Senators have introduced a second piece of legislation to amend expiring USA PATRIOT Act Provisions set for renewal this December, providing greater protection for library records and setting up a potential battle with the Obama Administration, which has stated its general intent to renew the current law.

At a Senate Judiciary Committee hearing today, Senators seemed supportive of changes. Sen. Sheldon Whitehouse (D-RI), closing the hearing, asserted that “we are all in agreement” that fine-tuning was necessary, as are auditing and accountability requirements.

“The momentum toward reform is building with two strong Senate bills before the American public,” American Library Association (ALA) President Camila Alire said in a statement. “The ALA looks forward to engaging in this public debate and continuing our mission to ensure patron privacy and other civil liberties are protected.”

The USA PATRIOT Act was first enacted in October 2001, and was reauthorized in 2006. Last week, Senators Russell Feingold (D-WI) and Dick Durbin (D-IL) also introduced reform legislation.

Leahy's take on library records
Senate Judiciary Chairman Patrick Leahy (D-VT), in introducing his new bill, stated it was time to redefine the power “to collect records for tangible things under Section 215 of the original Patriot Act, commonly referred to as the ‘library records’ provision.”

While Section 215 allows the Foreign Intelligence and Surveillance Act (FISA) court “to secretly require any entity to produce any document or other tangible thing with a minimal standard of relevance and a presumption in favor of the Government’s showing of relevance,” Leahy said his bill would eliminate that presumption. It would require the government “to make a connection between the records or other things it seeks and a suspected terrorist or spy before it is able to obtain confidential records such as library, medical and telephone records.”

It also would “establish more meaningful judicial review of Section 215 orders,” he said, repealing the current requirement that a recipient of a Section 215 nondisclosure order must wait a year before challenging that gag order.

Hearing testimony in support of status quo
In written testimony for the hearings, David Kris, Assistant Attorney General defended implementation of Section 215:

At the time of the USA PATRIOT Act, there was concern that the FBI would exploit the broad scope of the business records authority to collect sensitive personal information on constitutionally protected activities, such as the use of public libraries. This simply has not occurred, even in the environment of heightened terrorist threat activity. The oversight provided by Congress since 2001, the specific oversight provisions added to the statute in 2006, and the requirement that the government make a specific showing to the FISA Court in each application have helped to ensure that the authority is being used as intended.

Kenneth L. Wainstein, an attorney at O’Melveny & Myers, agreed, stating in his testimony:

In the Reauthorization Act of 2006, Congress added significant new safeguards to this authority. Addressing concerns raised about particularly sensitive records, it imposed the requirement of high-level approval within the FBI before a 215 order could be sought for “library circulation records, library patron lists, book sales records, book customer lists, firearms sales records, tax return records, educational records, or medical records containing information that would identify a person.” It also provided procedures by which the recipient of a 215 order can appeal to the FISA Court to challenge and litigate the validity of the order and the basis for its nondisclosure requirement—or “gag order.”

Hearing testimony in opposition
In her written testimony, however, Lisa Graves, executive director, Center for Media and Democracy, disagreed:

Virtually everything about you can be seized through secret 215 orders if you have any contact with a suspect.  And, under the law as amended in 2006, your employer, doctor, or librarian, for example, who may have known you since childhood, cannot ever tell you your privacy has been breached without going to court, even if you are never charged with any wrongdoing. And, it bars them from even challenging such orders for your personal, private information for a year. And, even then, the law as amended in 2006 makes it almost impossible for that person or business to prevail, by creating a conclusive presumption against disclosure if a government official certifies the request should be kept secret for various reasons, without providing the court with any facts to test such assertions.

It is no wonder that librarians and booksellers and other groups devoted to protecting freedom of conscience strongly oppose these far-reaching and excessive secret powers,” she added. “At every juncture, the prior administration eliminated checks and balances that would help protect the innocent and ensure these powers were properly focused. 

Senator Leahy’s bill would require that the government provide facts showing why they think the records they are seeking are actually relevant rather than just show any contact with a subject of an investigation, and it would allow recipients to challenge orders for the disclosure of any tangible thing sought…. Senator Feingold’s bill would make similar changes and also require that any restriction on freedom of speech related to receiving such an order be narrowly tailored… Both bills would also require more court oversight of how the things obtained with these orders are used or disseminated.

Graves pointed to a library incident:

In another instance of deliberately distorting the public debate in 2005, while the prior administration was asserting that the government was not interested in library records it was simultaneously seeking records from the Library Connection in Connecticut and gagging those librarians from telling Congress and rebutting the misleading assertions of the government. Both the Leahy and Feingold bills amend the law to address the constitutional flaws noted by the U.S. Court of Appeals for the Second Circuit in that case regarding the gag order that accompanies an NSL. These improvements are essential.

Contact the author: noder@reedbusiness.com