bIt's early days in the 109th Congress, and none of the bills from the 108th Congress that would amend Section 215 of the USA Patriot Act have been reintroduced yet.
Section 215 is the infamous section that expanded the list of businesses that could be the subject of a Foreign Intelligence Surveillance Court order from "common carriers, public accommodation facilities, physical storage facilities, or vehicle rental facilities" to cover "any business or entity." This of course includes libraries. There is no limit on the tangible items that can be requested, and the order must issue when the government makes an application that complies with the terms of the law. There is no basis for review of the government's order, as only the government has standing to appear in the FISA Court. The person or entity that is served with the order is prohibited from revealing that the order was served.
Because of the long-standing tradition in this country of protecting the right to receive information without government oversight, there were a number of attempts in the 108th Congress to exempt libraries and bookstores from the provisions of Section 215 and other portions of the USA Patriot Act affecting libraries and bookstores. Those bills included:
- Freedom to Read Protection Act (H.R. 1157), a bi-partisan act and its companion bill, the Libraries, Booksellers and Personal Records Protection Act (S. 1507), to withdraw library and bookseller records from the effects of section 215.
- Library and Book Protection Act (S. 1158), to require the government to meet a higher standard than currently required to get a section 215 order, and would require a probable cause warrant for counterintelligence access to certain enumerated library records.
- Benjamin Franklin True Patriot Act (H.R. 3171) was a bi-partisan act to require a debate to take place on specified provisions of the USA Patriot Act, including Section 215, and, unless approved after debate, would sunset each provision. This would help rectify the lack of debate at the time the USA Patriot Act was passed.
- Security and Freedom Ensured (SAFE) Act (S. 1709) and the companion House Act (H.R. 3352) - bi-partisan bills required a “specific and articulable facts” standard if the government wants a section 215 order. SAFE also provided that libraries are not Internet service providers subject to a Section 505 national security letter. In Doe v. Ashcroft (04 Civ. 2614 (VM)), the District Court for the Southern District of New York held that section 505 violated the Fourth Amendment both as drafted and as implemented, and that the gag order provision of section 505 was a prior restraint on speech in violation of the First Amendment. The order was entered by the clerk on September 30, 2004, and was stayed for ninety days to allow the government to appeal or take other action.
- Protecting the Rights of Individuals Act (S. 1552) - a bi-partisan act to place reasonable restrictions on some USA Patriot Act provisions, including meeting the probable cause standard where library records, medical records, records of purchasing or renting books, video, or music, or records of Internet access are requested, prohibiting Section 505 national security letters to obtain library records, and reinstating a probable cause requirement for allowing the monitoring of Internet viewing.
Take a few minutes and let your senators and representatives know you care about getting these bills reintroduced and that you would like public debate on these issues. To locate the name of and contact information for your senator or representative, go to http://www.visi.com/juan/congress/ .