As I'm sure you know, Bernie Sander's (I-VT) "Freedom to Read" amendment to the Commerce, Justice, State Appropriations Bill of 2005 failed to pass the House on July 8, 2004, with a 210-210 vote.
It would have restored the legal standards and warrant procedures for investigations of libraries and bookstores which were in place before passage of the PATRIOT Act.
The original vote came down in favor of the amendment, but the vote was held open and several House members were persuaded to change their votes, according to various sources including the Bill of Rights Defense Committee. Assistant Attorney General William E. Moschella distributed a letter claiming that terrorists have "utilized public library facilities to communicate with others about committing acts of terrorism" without mentioning that existing legal processes were sufficient to get the information needed.
I'm particularly disappointed in Rep. Zoe Lofgren (D-CA) who voted "present." She was on my local county board of supervisors ten years ago, and I've followed her career. She is normally a great library supporter and is a cosponsor of HR 1157, Rep. Sanders' original bill. I feel like a major idiot for not contacting her to vote yes on this bill. When I think that as one person I can't make a difference, I should remember librarian Trina Magi, who got the ball rolling by contacting Bernie Sanders in the first place.
My local paper, the San Jose Mercury News wrote an editorial Sunday lambasting Lofgren for not breaking the tie with a yes vote. According to the SJMN, Lofgren said the amendment went too far. She said it would have prevented law enforcement from conducting legitimate searches, for instance, to stop a cyber attack from being launched or planned from a library computer. It wouldn't. The government had plenty of legal tools to use before the Patriot Act, and these would still be in effect.
NEXT STEP: LET IT SUNSET
We need to be sure Sect. 215 sunsets. I can't tell you how many times I've heard people incorrectly say the PATRIOT ACT will sunset December 31, 2005. If you were at the American Library Association's annual conference in Orlando, you may have heard Raul Grijalva (D-AZ) say it. Other than that, he spoke very eloquently on behalf of libraries.
The PATRIOT Act does not sunset. SOME SECTIONS sunset. Sect. 215 is one of them.
Section 215 (access to records and other items under the Foreign Intelligence Surveillance Act) will sunset unless Congress takes action. Librarians need to make sure that doesn't happen. I will write Rep. Lofgren now with that message. If I hear that renewal legislation is in the works, and it's not widely blogged, I'll blog it. I'll also contact my legislators. Mike Honda (who voted for the amendment) is my actual Representative. This may be a bit shocking to those of you in small states with one representative. Silicon Valley has several. I can write Rep. Lofgren though, as I am the policy analyst for CALTAC, the California Association of Library Trustees and Commissioners, which has taken a clear position on the issue.
The Congressional Research Service just issued a June 10, 2004 report on USA Patriot Act Sunset: Provisions That Expire on December 31, 2005, written by Charles Doyle. These reports are like really intelligent Cliff Notes to issues considered by Congress and I wish they were all available on the web. (John McCain and others have tried unsuccessfully to make this happen).
This one is available through the Federation of American Scientists. The report says:
From Charles Doyle's CRS Report RL32186
"Section 215 (access to records and other items under the Foreign Intelligence Surveillance Act).FISA originally authorized a FISA court order (in a terrorism investigation or an effort to gather foreign intelligence information) for FBI access to the business records of hotels, motels, car and truck rental agencies, and storage rental facilities, 50 U.S.C. 1862 (2000 ed.). An application for such an order had to assert that there were “specific and articulable facts giving reason to believe that the person to whom the records pertain [was] a foreign or an agent of a foreign power,” 50 U.S.C. 1862(b)(2)(2000 ed.). Section 215 expands the authority to include not only business records but any tangible item regardless of the business or individual holding the item and upon the simple assertions that the records are sought in an effort to obtain foreign intelligence (not based solely on the First Amendment protected activities of a U.S. person) or in a terrorism investigation, 50 U.S.C. 1861).[FN8]
Section 215 expires on December 31, 2005, except with respect to on-going foreign intelligence investigations, at which point the law reverts to the hotel-motel-car-rental business records procedure that the [sic] predates the Act. There are no subsequent amendments to the Act or to FISA that alter the consequences of that reversion, but the impact of expiration may be mitigated by changes in the law governing “national security letters” that provide access to a wider range of business records after sunset.
Provisions in the Right to Financial Privacy Act, the Fair Credit Reporting Act, and chapter 121 of title 18 of the United States Code, authorize the FBI when investigating international terrorism or clandestine intelligence activities to request access to business records held by banks, credit report agencies, and communications carriers, 12 U.S.C. 3414, 15 U.S.C. 1681, 18 U.S.C. 2709. Section 374 of the 2004 intelligence authorization act amends the Right to Financial Privacy Act to give the FBI access to business records held not only by banks, but by credit card companies, car dealers, real estate agencies, stock brokers, jewelers, and certain other business occasionally marked by large cash transactions, P.L. 108-177, 117 Stat.2628 (2003).
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[FN8] The Act itself limited authority under section 215 to cases involving “investigations to protect against international terrorism and clandestine intelligence activities,” but a later intelligence authorization act amended the section to include “investigations to obtain foreign intelligence information not concerning a United States person,” P.L. 107-108, §314(a)(6), 115 Stat. 1402 (2001)."
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