No Action Yet On Legislation to Exempt Libraries from USA Patriot Act Section 215 Orders: It's Time to Contact Your Congress Persons

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/ .

Comments

[Susan Nevelow Mart]

In the interest of facilitating your research, a redacted version of the Attorney General's Guidelines for FBI, National Security Investigations and Foreign Intelligence Collection is available at
http://www.fas.org/irp/agency/doj/fbi/nsiguidelines.pdf.

The form used by the government to get a section 215 order is available at
http://www.aclu.org/patriot_foia/2003/215formappn.pdf.
All the government does is make a statement that the investigation "is not being conducted solely on the basis of activities protected by the First Amendment."
This is the government's way of complying with Section 215. There have been no reports that this form has been turned down by the FISA courts as noncompliant, and certainly no case law interpreting the form.

[Kirsten Edwards]

Thanks for the response, though it was about as helpful as the typical DOJ flack response e.g. pretty much left me still wondering!

In terms of section 215 the difficulty is that the way its phrased indicates that the judge has discretion in deciding whether or not the application meets the statutory requirements, one of which concerns materials covered by first ammendment protections (2b): "...not be conducted of a United States person solely upon the basis of activities protected by the first amendment to the Constitution of the United States." It also mentions specific AG guidelines wh. I have not yet found, to wh. the judge would also have to agree that the application conformed.

But as I wrote before, just because something appears to be clearly stated in a law doesn't mean that it's not, in fact, anything but. So, does this really mean that the legal opinion in this instance is so varied only a court case will do?

[Susan Nevelow Mart]

Libraries will not be surveillance free zones if probable cause is required for
searching libray records. It's not that hard to get a search warrant, and every
state now allows library records to be requested pursuant to a search warrant.
The warrant requirement assures every user of the library that the government
will not go on fishing expeditions to find out what people are reading and viewing.
Fear of these fishing expeditions chills people's desire to go to libraries to read
and surf the web, and it's a fair trade-off, in my view, to let the majority of
people use the library free of fear. A warrant will suffice to get the bad guys.

Regarding your other two questions, we need court decisions to answer them.
Just note that the language of section 215 is mandatory: if an application meets
the statutory requirement, the court has no discretion about issuing the the
order.

[Kirsten Edwards]

I'm still trying to track down whether or not the difference between Section 213's time frame for delayed notification is significantly greater or more variable than that used in other FBI and law-enforcement requests. What does the law consider to be a "reasonable period", do you know?

I'd also like to know how the language of 215 (ammended Sec. 501) to wit: "if the judge finds that the application meets the requirements of this section" affects the "shall order" portion of 501(c)(1). I know in law-land what appears an obvious check is often anything but. Can you help?

Finally: Why is it useful to have our library's free internet computers declared an "anti-terrorism-monitoring-free zone?" [SAFE et. al]? I support the raising to probable cause the request to seize reading records, but I don't want our public libraries to appear unduly attractive to terrorist cells. I'd like to see ammendments to the Patriot Act that make such monitoring more responsive to oversight but I'm leary of the consequences of removing them alltogether. Your thoughts?

[Sarah Houghton]

Thanks for re-introducing this into our field of vision!