LibraryLaw Blog

Finally - Some Congressional Debate on the Patriot Act

As you know, few hearings on the specific provisions of the USA Patriot Act have been held. A press release from Zoe Lofgren, a Democratic Congressperson from San Jose, says that the House Judiciary Committee has finally agreed to hold hearings on all of the provisions of the Patriot Act, including those set to sunset in December 2005.

Proponents of the Patriot Act are sure to re-introduce legislation to remove the sunset provisions, and make the those provisions permanent. There were also many attempts in the 108th Congress to amend or ameliorate the provisions of the Patriot Act most troubling to defenders of civil liberties. See No Action Yet on Patriot Act.

Criticisms of the Patriot Act have been that is was not well thought out, not publicly debated, and was passed quickly and with no time for review. All prior attempts to conduct thoughtful debate have failed.  The Committee has a broad agenda, including conducting

• "a series of classified and non-classified hearings before the August recess to examine whether the expiring provisions of the USA PATRIOT Act should be renewed.  Among the areas of inquiry will be a review of the effectiveness of the USA PATRIOT Act powers and how responsibly they have been applied by the Department. 
• In addition, the Subcommittee (and full Committee) will conduct a series of classified and non-classified hearings before the August recess to examine whether changes should be made to non-expiring provisions of the USA PATRIOT Act, including expanded surveillance powers such as pen register searches and roving wiretaps and delayed notice search warrants."

Although the Committee's agenda could lean towards retaining and further enhancing the reach and range of PATRIOT Act surveillance tools, rather than focus on correcting the PATRIOT Act's incursions into civil liberties, both questions have actually been posed. At the very least, there will finally be some public debate in Congress on the provisions of the Act and how it has actually been used.

Added February 8:

Jack Stephens of Conservator apparently thinks that a 2003 e-mail from the ACLU to Dianne Feinstein, allegedly stating the ACLU had no instances of actual abuse of the Patriot Act to report, obviates the need for public debate on the Patriot Act completely. I disagree. The potential for abuse is more than sufficient to make debate necessary and meaningful. In addition, there have been instances of abuse where suits have been filed, and sections of the Patriot Act (505, below, and 805) have been declared unconstitutional (as Jack Stephens has posted). For more instances, just go to the Department of Justice and look at their reports. Section 215, like 505, has a gag order provision, making challenges (and actual instances) difficult to bring. Nevertheless, in Doe v. Ashcroft, section 505 (regarding National Security Letters, long abhorred by librarians) was held unconstitutional, and there is a suit pending regarding section 215.

The Electronic Freedom Foundation has filed a FOIA Request to Find Out What We All Want to Know: Is the FBI Using section 216 of the USA PATRIOT Act to Monitor Your Web Browsing?

            The Department of Justice has refused to give the public a straight answer to the question: are you using pen register orders, which are issued on a mere showing of relevance, to capture the URLs of web pages?  Section 216 of the USA PATRIOT Act amended the pen register statutes, so that federal courts must issue a pen register order allowing real time interception of non-content information from computers, not just from telephones. The big question for the DOJ has been whether or not it considers web addresses to be content, or if it is treating URLs as if they were non-content, like a telephone number. To recover content, the government still needs a warrant, and must show probable cause. To get non-content, like a telephone number or the address information from an e-mail header, the government need only make a relevance showing, and can get the information with a pen register order. Many commentators have pointed out that knowing the URL of a web page is the same as seeing the content: plug in the URL and the whole page someone viewed pops up. The DOJ has always sidestepped a direct answer to this question, even when asked by Congress.

On January 13, 2005, the Electronic Freedom Foundation (EFF) asked the government to answer this question by turning over documentation about the use of Section 216 to recover web addresses. The FOIA request is available at the EFF web site. For further discussion of section 216 as it relates to libraries, see my article Protecting the Lady From Toledo: Post-USA PATRIOT Act Surveillance at the Library, 96 Law Libr. J. 494 (2004).

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/ .

What does the chair of the President's Board on Safeguarding Americans' Civil Liberties REALLY think about librarians?

You may have read that Deputy Attorney General James Comey is chairing the new President's Board on Safeguarding Americans’ Civil Liberties.  What does this mean for libraries?

Well, here's what James Comey said about librarians in an address before the American Law Institute last May:

I think librarians do tremendous good in this world, and I'm not saying that just because the First Lady is a librarian, but I do believe that it is a shame that the debate with people who care so much about public policy, as I believe librarians do, has been so ill-informed.

Mary: I believe, by and large, that librarians are better informed than most folks, and take issue with a number of his points. Here are some short excerpts by Comey, followed by my thoughts.

Lawyers for Libraries update in 2003

The State Library of Iowa offered a legal update for libraries in June 2003 (I just stumbled upon it), based on the Lawyers for Libraries training offered by the American Library Association.  It covers privacy, warrants, liability, public forum and free speech issues.  It's in outline form, and gives relevant case citations. 

How did library issues fare under the last Congress? What's in our future? Remarks by Mary Alice Baish, AALL

On Janurary 4th, 2005, the new Congress, the 109th, will convene. Here's a look back  at how library issues fared under the 108th Congress.

Recently, I (Raizel) attended the Chicago Association of Law Libraries November meeting and advocacy training. The speaker was Mary Alice Baish, American Association of Law Libraries (AALL) Associate Washington Affairs Representative, talking on "The 108th Congress Draws to an End: the Good, the Bad, and the Ugly." She has generously allowed me to post her talk, allowing a better understanding of the goals of AALL and the inner workings of Congress.  A pdf copy is at AALL.

"... So I’d like to give you an overview of our core issues during the past two years—from the perspective of what was good, what was bad, and what was really ugly. I’m going to cover them under four broad categories:

• First, appropriations.
• Second, copyright and digital rights management.
• Third, the USA Patriot Act. 
• And fourth, access to government information. "

In which I am truly honored

More personal news: Yesterday the California Library Association (CLA) gave me the Zoia Horn Intellectual Freedom Award. I am truly honored. When I got the letter in the mail from CLA telling me I had been chosen, I honestly thought it was going to be a letter telling me I'd forgotten to renew my membership. Thank you, Danis Kreimeier, Karen Schneider, David Dodd and the CLA Intellectual Freedom and Executive Committees! 

Probably the best part is the halo effect.  Today I got to a board meeting twenty minutes late.  Instead of dirty looks, I got applause.  Everyone should have that experience!

Warning! Check with your lawyer before responding to FBI national security letter requests for patron records

You might be liable if you give out patron records to FBI agents who present you with seemingly authentic National Security Letters (NSLs).  Talk about twists and turns.  Unless your lawyer is already on top of these issues, you should point out this case to him or her.

When Chris Haase first told me that the ACLU had won its lawsuit challenging the constitutionality of a Patriot Act National Security Letter (NSL) provision, I hadn't thought about its full impact on libraries.  Today when I read cyberattorney Parry Aftab's analysis for businesses [Information Week, The Privacy Lawyer: Privacy Policies And The Patriot Act Nov. 8, 2004], I realized her warning to businesses applies to libraries too.  In fact, even more strongly, since state law protects library patron records, not just company policy.

Aftab writes:

If the decision is not overturned, you may not be able to rely on the Patriot Act to protect you if you don't inform your subscribers of a governmental inquiry. Make sure your counsel understands the laws and your policies and can guide you when government or anyone else comes knocking.

Background: A federal district court (S.D.N.Y.) ruled in Sept. that the national security letters legal authority (at least NSLs authorized by 18 U.S.C. 2709) is constitutionally flawed. The government still has time to appeal the decision.

For now, if our institutions have privacy policies that state that we will not share personal information about users except through valid legal process (especially policies that say that users will receive notice, except to the extent prohibited by law), we should know that some NSLs may not be valid.  Call this the full employment act for lawyers.

John Doe and American Civil Liberties Union v. Ashcroft, 04 Civ. 2614 United States District Court for the Southern District of New York September 28, 2004

Personal note for ASquared: The reason I'm prolific today on the blog is because I'm supposed to be doing billing which I am avoiding cuz I hate doing that.  I hereby blogswear to get that done before I post again.

Library Privacy Audits and Search Warrants: Preparing for Inquiries into User Records - webcast Nov 4

Karen Coyle and I will be doing a free webcast for California librarians Nov 4th on Library Privacy Audits and Search Warrants: Preparing for Inquiries into User Records. Others may view it after it's archived (about a day later) for free. To watch a webcast, you just need a computer with a fast connection. Once you log in, you get a video presentation complete with powerpoints and handouts. If you watch it live, you can "chat" and type in your questions.

The renewed awareness of privacy issues sparked by the Patriot Act creates an opportunity to take stock of library policies and procedures. Since library records are now almost exclusively in machine-readable form, librarians have become the caretakers of a significant data bank of personal information relating to library users. How effectively is your library protecting privacy? Are your policies and procedures up-to-date with current technology? Does your staff know how to respond to a search warrant? when must records be turned over? What records do you keep? The best way to find out how well you are protecting patron privacy is to perform a privacy audit. This presentation will give you an outline of legal and technical issues that an audit must take into account.

This webcast would benefit library administrators, those responsible for library systems and library systems staff.

Webcast: November 4, 2004
Time: Noon - 1:00pm PST
Speaker: Mary Minow & Karen Coyle

http://www.infopeople.org/training/webcasts/11-04-04_privacy.html

library privacy webcast archived

I did a webcast today for Infopeople which will be archived for anyone to see for free:

Privacy is an essential component to the freedom to read. When we know our behavior is observed, it changes. How do federal and state laws protect user privacy? What is the difference between anonymity and confidentiality? How can a local library policy add additional privacy protections for users? Does your privacy policy promise more than it can guarantee by law? This webcast will lay a foundation of relevant privacy law for libraries, and then discuss guidelines for developing or revising a library privacy policy.

This webcast would benefit library administrators, those responsible for library systems and in-charge librarians.

http://www.infopeople.org/training/webcasts/archived.html