The USA PATRIOT Act

 


What is the USA PATRIOT Act?    

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The “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism” Act, or USA PATRIOT Act, was introduced less than a week after September 11, 2001, and was signed into law on October 26, 2001.

The bill broadly expanded law enforcement’s surveillance and investigative powers and amended more than 15 different statutes, including the Electronic Communications Privacy Act of 1986 (ECPA), the Computer Fraud and Abuse Act (CFAA), the Foreign Intelligence Surveillance Act (FISA), and the Family Education Rights and Privacy Act (FERPA).

Among other things, the USA PATRIOT Act’s intent was to update wiretap and surveillance laws for the Internet age, addressing real-time communications and stored communications (e-mail, voicemail), and to give law enforcement greater authority to conduct searches of property.

President Bush signed the USA PATRIOT Act reauthorization legislation, which differs somewhat from the original legislation into law on March 9, 2006. A sunset of December 31, 2009, was established for Section 215 of the USA PATRIOT Act, commonly referred to as the “library provision.”


Why does it matter to libraries?    

Libraries are key sources of information on all kinds of subjects and from all perspectives for their communities. Reading has always been one of our greatest freedoms. The written word is the natural medium for the new idea and the untried voice from which come the original contributions to social growth.

Libraries provide a place to exercise intellectual freedom: a free and open exchange of knowledge and information where individuals may exercise freedom of inquiry as well as a right to privacy in regards to information they seek. Privacy is essential to the exercise of free speech, free thought, and free association. In a library, the subject of users' interests should not be examined or scrutinized by others.

The ALA believes certain sections of the USA PATRIOT Act endanger constitutional rights and privacy rights of library users. Libraries cooperate with law enforcement when presented with a lawful court order to obtain specific information about specific patrons; however, the library profession is concerned some provisions in the USA PATRIOT Act go beyond the traditional methods of seeking information from libraries.

For additional information on how the USA PATRIOT Act affects intellectual freedom, visit the ALA's Office for Intellectual Freedom (OIF) web site, especially their Privacy and Confidentiality section. ALA’s Resolution on the USA PATRIOT Act and Libraries is a useful resource. What can you do next? Visit the Bill of Rights Defense Committee's page on Resources for Defending Civil Liberties for guidelines.


Why is the ALA involved with the USA PATRIOT Act and other surveillance issues?    

Protecting patron privacy and the confidentiality of library records are deep and longstanding principles of librarianship that guide the ALA’s legislative and policy activities on privacy and surveillance issues. The freedom to read is an inherently important part of our First Amendment rights and civil liberties.

These principles have been articulated in key resolutions passed by the ALA’s governing body, the ALA Council, and include numerous statements regarding the USA PATRIOT Act, national security issues and other federal surveillance and privacy polices.

Prior to the PATRIOT Act, these principles were articulated through existing laws, still on the books in 48 states and the District of Columbia to protect the confidentiality of library records. Two additional states have similar policies established by letters from their attorney generals.

Also, during the ALA annual conference in July 2005 the ALA Council passed a resolution urging Congress to allow Section 215 of the USA PATRIOT Act to sunset. However, legislation has been introduced in the 111th Congress indicating otherwise.


Reauthorization History    

Three provisions of the USA PATRIOT Act will expire by the end of the year, triggering consideration of reauthorization legislation. The expiring provisions are authorizations for roving wire taps, the “lone wolf” measure, and orders for tangible things (Section 215, commonly referred to as the “library provision”).

On September 17, 2009, Senators Feingold (D-WI) and Durbin (D-IL) introduced the Judiciously Using Surveillance Tools In Counterterrorism Efforts (JUSTICE) Act to address problems with surveillance laws that threaten the rights and liberties of American citizens.

On September 22, Sen. Patrick Leahy (VT-D) introduced S. 1692, the USA PATRIOT Act Sunset Extension Act of 2009. Hours before the Senate Judiciary Committee’s first mark-up of the S. 1692, a bill negotiated by Leahy and Dianne Feinstein was substituted in place of the original S. 1692. The substitute bill substantially weakened the reforms the library community has sought relevant to Sec. 215 and national security letters.

During the mark-ups, several senators attempted a number of amendments; none of the amendments that would have improved protection of civil liberties passed.

The substitute “Feinstein” bill was passed by the Judiciary Committee with an 11 to 8 vote at the second markup on October 8. The ALA continues to seek reforms that would:

  • Require law enforcement officials to show individualized suspicion that records or other items being sought pertain to a foreign power or agent, a person in contact with a suspected agent, or a suspected agent who is the subject of the investigation; and
  • Require records other items being sought to be described with sufficient particularity to allow them to be identified – reducing the danger that the FBI will engage in fishing expeditions into personally identifiable information in library or bookstore records; and
  • Required the Foreign Intelligence Surveillance Act (FISA) Court to make a finding that these facts have been sufficiently demonstrated; and
  • Show cause for a FISA court to approve a gag order; gage orders will expire at the end of six months unless cause is shown to reauthorize them; and
  • Allow a recipient of a FISA Section 215 records-search order to consult with an attorney or others for help responding to the request; and
  • Guarantee a recipient the right to challenge any gag order; and
  • Ensure due process for any recipient challenging a search or gag order; and
  • Set a sunset date for Section 215 of no more than four years, to ensure ongoing oversight and assessment of the impact of this provision on civil liberties; and
  • Intensify oversight of the Section 215 and national security letters provisions of the USA PATRIOT Act and other laws that limit the privacy rights of library users, library employees and the general public.

Current Reauthorization Legislation

Senate

JUSTICE Act of 2009
On September 17, 2009 Senators Feingold (D-WI), Durban (D-IL), Tester (D-MT), Udall (D-NM), Bingaman (D-NM), Sanders (I-VT), Akaka (D-HI) and Wyden (D-OR) introduced legislation to address problems with surveillance laws that threaten the rights and liberties of American citizens. The Judiciously Using Surveillance Tools In Counterterrorism Efforts (JUSTICE) Act, S. 1686 would reform the USA PATRIOT Act, the FISA Amendments Act and other surveillance authorities to protect the constitutional rights of Americans while ensuring that the government has the powers it needs to fight terrorism and collect intelligence.

USA PATRIOT Act Sunset Extension Act of 2009
Chairman Leahy and Sens. Cardin and Kaufman introduced the USA PATRIOT Act Sunset Extension Act of 2009, a bill to reauthorize the expiring provisions on September 22, 2009. This bill respects constitutional rights by increasing judicial review of the use of surveillance authorities that sweep in U.S. citizens. The bill also expands public reporting to ensure that Americans can monitor the use of these authorities.

There is a provision in the amended version of S. 1692 that slightly raises the legal standard to obtain a Section 215 order for “library circulation records or patron lists” – a very narrow definition. This “fix” does not address “reader privacy” as a whole, so unfortunately bookstores are not covered in this provision. Further, the provision only addresses 215 orders and does nothing for increasing the legal standards for national security letters which are far more troubling. The substitute “Feinstein” bill was passed by the Judiciary Committee with an 11 to 8 vote at the second markup on October 8th.

USA PATRIOT Reauthorization Act of 2009
On October 29, 2009, Sen. Sessions (R-AL) introduced the USA PATRIOT Reauthorization Act of 2009 (S. 2336) with Sens. Lieberman (I-CT) and Bond (R-MO).

House

The FISA Sunsets Reauthorization Act of 2011 (H.R.1800)

Following a hearing on May 11 on The FISA Sunsets Reauthorization Act of 2011 (H.R.1800), the House Judiciary Committee held a markup on the bill on May 13. The committee moved H.R. 1800 with no amendments, substantially by a party line vote. On final passage, Rep. Jason Chaffetz (UT-R) voted NO, and Reps. Pedro Pierluisi (PR-D) and Mike Quigley (IL-D) voted YES.

H.R. 1800 would reauthorize both the “John Doe” wiretap and Section 215 orders for another six years and would make the unused “lone wolf” provision permanent. As the American Civil Liberties Union (ACLU) pointed out, “If this bill passes, it would mean that until 2017, the government would have nearly unchecked authority and be subject to little congressional oversight for issuing 215 orders that allow the government to demand "any tangible thing" during an investigation, including credit reports, medical records, business records and even library records — all without any suspicion of wrongdoing. The government would have the same unchecked authority to place roving wiretaps on essentially any phone line, without getting a warrant for a specific, identified individual first.”

It is not clear at this writing when the bill will go to the House floor for a vote. The sunset date for the three expiring provisions (Sec. 215, roving wiretaps and lone wolf) is May 27th – just as the House goes into its Memorial Day recess. Some observers suggest that there is time for the House and Senate to finalize their respective bills and conference the two versions by May 27. Others are highly skeptical that this can happen. It is more likely that there would be a short-term extension beyond May 27 to finalize this work before the Fourth of July recess.

Of the eight amendments introduced to H.R. 1800, two “positive” amendments proposed improved protection for library and bookseller records. Reps. John Conyers (MI-D) and Jerry Nadler (NY-D) each offered “library” amendments, but both were defeated as were the other amendments relating to roving wiretaps, shortening the sunsets, guns for terrorists and a Section 215 gag fix. A full list of the amendments and the record of the roll call votes is available here.

The USA PATRIOT Act Sunset Extension Act of 2011

Meanwhile, Rep. Conyers, the ranking member of House Judiciary Committee, has introduced the USA PATRIOT Act Sunset Extension Act of 2011 (H.R. 1805), a bill “To extend the sunset of certain provisions of the USA PATRIOT Act, and for other purposes.”

H.R. 1805 is the companion bill to S. 193 – also titled the USA PATRIOT Act Sunset Extension Act of 2011 – introduced by Senate Judiciary Chair Patrick Leahy (VT-D). A vote on this bill has not yet been scheduled.

JUSTICE Act

Many organizations and individuals working on these privacy and surveillance issues are still waiting for re-introduction of the JUSTICE Act from the 111th Congress. The JUSTICE bill would include reform to the USA PATRIOT Act and to the FISA Amendments Act of 2008, including national security letters. For more about the JUSTICE Act see the American Civil Liberties Union summary.

USA PATRIOT Amendments Act of 2009
On October 20, 2009, House Judiciary Committee Chairman John Conyers (D-MI) and Representatives Jerrold R. Nadler (D-NY) and Bobby Scott (D-VA) introduced the USA PATRIOT Amendments Act of 2009 (H.R.3845). The USA PATRIOT Amendments Act of 2009 includes several key reforms that restore important civil liberties without diminishing the government’s ability to conduct legitimate national security investigations. Chief among these are:

  • Prohibition of use of Section 215 orders to obtain personally identifiable information about patrons from libraries or booksellers;
  • Meaningful judicial review of Section 215 orders, NSLs, and the gag orders that prevent recipients from talking about these orders;
  • Rational limits on gag orders including limits on their duration once challenged;
  • Rational limits on the scope of NSLs so that they cannot be used unreasonably to gather information on innocent Americans;
  • Minimization procedures to insure that information obtained using these powers is destroyed once it is no longer relevant to an ongoing investigation; and
  • Yearly audits of the use of these powers and a new “sunset” that will give Congress an opportunity to consider further reform based on those audits.

The House of Representatives Judiciary Committee’s passed H.R. 3845 on November 6, 2009.

Counterterrorism Authorities Improvements Act of 2009
On October 29, 2009, House Intelligence Chairman Reyes with Representatives Boren, Hastings, and Ruppersberger introduced H.R. 3969, legislation to reauthorize expiring provisions of the USA PATRIOT Act.
More information on this legislation is available on Thomas.

JUSTICE Act Of 2009
On November 3, 2009, Representative Holt introduced the House version of the JUSTICE Act (H.R. 4005), a bill that is almost identical to S. 1686 introduced in October by Senator Feingold.

Further Reading from ALA    

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