Privacy Related Legislation 2005

	ALA supports
	ALA has no official position
	ALA opposes

Late update: 28-Dec-2005 10:16

PATRIOT Act

• S 1389 (USA PATRIOT Improvement and Reauthorization Act)
• HR 3199 USA PATRIOT and Terrorism Prevention Reauthorization Act of 2005
• Administrative Subpoenas
• Proposed Senate Intelligence Committee Bill Expanding PATRIOT Act
• Security And Freedom Enhancement (SAFE) Act
• Freedom to Read Protection Act

Other

• REAL ID Act of 2005, Section 202

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The PATRIOT Act

The House action on the 22nd postponed expiration of the Act until 3 February 2006.

Late on Friday, July 29, the final day before its 2005 summer recess, the Senate passed S. 1389 (the USA PATRIOT Improvement and Reauthorization Act of 2005) on unanimous consent (no debate, no amendments, no roll call vote). The bill adds to the USA PATRIOT Act many of the safeguards for library and reader privacy that have been sought by the library community since the passage of the law in 2001, including tougher requirements for searching library records under Section 215.

The vote was a surprise, coming just one week after the Senate Judiciary Committee passed the S. 1389 and the House passed H.R. 3199 and just when everyone thought the Senate was rushing out the door for its summer recess. The two bills will now need to be reconciled by a Conference Committee. The Senate conferees have been named; the House conferees have not to date. Conference is expected to begin at the staff level the week of September 26th.

Here is a brief comparison of the bills.

Sunsets
Both bills reauthorize sections of the PATRIOT Act that would expire at the end of this year. The House bills extends the sunset period for Section 215 to 2015; the Senate to 2009. The shorter sunset is preferable because it will cause more oversight by Congress.

Section 215: Standard for Obtaining Order
The House legislation allows the FBI to obtain library records of anyone whenever they are "relevant" to a counter-terrorism or counter-espionage investigation.

The Senate bill requires the FBI to give facts showing reason to believe that the records sought are "relevant to" counter terrorism or counter intelligence investigation, AND that items "pertain to" a foreign power, agent of a foreign power, or person in contact with a suspected agent or are "relevant to" the activities of a suspected agent who is the subject of the investigation. It also requires the FISA Court to "find" these facts (i.e., not just rubber-stamp the request). The Senate bill also requires records or other things to be described with "sufficient particularity" to allow them to be identified - reducing the danger that that the FBI will engage in fishing expeditions in library or bookstore records.

Required Approval
The House legislation requires the Director of FBI to personally approve any request for records from a library. The Senate legislation requires the personal approval of Director or Deputy Director of the FBI for library, bookstore, firearms or medical records.

Consulting an Attorney
Both bills allow disclosure of receipt of a Section 215 order to to "any person necessary to produce the tangible things pursuant to an order under this section" or "an attorney to obtain legal advice." The Senate version allows a recipient to consult an attorney to obtain legal advice "in response to an order under this section -- in other words, to obtain advice on challenging it, etc. The House version only "with respect to an order under this section" -- in other words, only to comply with the order.

Challenges -- Order
Both bills allow the recipient of a Section 215 order to challenge the order. The House version allows this only in special "petition review panel" of the FISA court and only to determine "legality" of the order.The Senate bill gives recipient of the order the right to challenge both the order itself (on same basis as for a grand jury subpoena), in the FISA Court.

Challenges -- Gag Order
The House version does not allow any challenge of the secrecy/gag order. The Senate version allows challenge of the secrecy/gag order, but only in the FISA court.

Reporting
The Senate bill improves the reporting required of the Justice Department. It requires that the DOJ report annually on the total number of applications made for Section 215 orders approving requests for the production of tangible things, and the total number of orders either granted, modified, or denied, when the application or order involved the production of tangible things from a library (as defined in section 213(2) of the Library Services and Technology Act), or the production of tangible things from a person or entity primarily engaged in the sale, rental, or delivery of books, journals, magazines, or other similar forms of communication whether in print or digitally, as well as records related to the purchase of a firearm, health information (as defined in section 1171(4) of the Social Security Act), taxpayer return information.

Section 505: Challenges -- Letter
Both the Senate version and the House version allow a recipient of a National Security Letter to challenge the request in a U.S. District Court. The House version allows the court to set aside if it is "unreasonable" or "oppressive." The Senate version permits the court to set it aside if "unreasonable" or "oppressive" or it would violate a constitutional or legal right.

Challenges -- Gag Order
In regard to the gag order, both bills allow a challenge to the gag order in a U.S. District Court. In the House bill, the gag order is no longer automatic but is based on a certification that disclosure would harm national security, interfere with diplomatic relations, harm an investigation or endanger life or physical safety. In the Senate version the court can set it aside unless doing so would harm national security, interfere with an investigation, interfere with diplomatic relations, or endanger life or physical safety. In both bills ,if the government certifies this would result, certification must be treated as “conclusive.” In the House bill, if a year has elapsed since issuance of the order (or previous challenge), issuing official must re-certify but certification is still conclusive.

Enforcement
Both bills allow the government to go to a U.S. District Court to seek enforcement of the NSL. The Senate stops there. The House bill makes violation of the enforcement order punishable as contempt. It establishes new penalties for violating the gag order of up to 1 year in prison, or up to 5 years if committed with intent to obstruct an investigation or judicial proceeding.

S 1389 (USA PATRIOT Improvement and Reauthorization Act)

Makes important improvements to protect the privacy of library users.

Section 7 addresses Section 215 of the PATRIOT Act. It raises the standard for Section 215 orders beyond the current one ("records concerned are sought for...") by requiring that there be:

1. a factual basis for a request to the FISA Court — a statement of facts showing reason to believe the records or other things sought are relevant to an authorized investigation to obtain foreign intelligence information not concerning a U.S. person (citizen or resident alien) to protect against international terrorism or clandestine intelligence activities; and
2. that the records pertain to a foreign power or agent of a foreign power (spy or terrorist);
   • are relevant to the activities of a suspected agent of a foreign power who is the subject of an authorized investigation; or
   • pertain to an individual in contact with, or known to, a suspected agent of a foreign power. {This is intended to address FBI concerns about being able to get to the records of "Mohammed Atta's roommate" — someone who is not a suspected terrorist but whose records (e.g., credit card records) might contain information relevant to an authorized investigation.}

The bill also requires that the tangible things sought be described "with sufficient particularity to permit them to be fairly defined."

Section 7 of the bill also would require the Director of the FBI or the Deputy Director to give prior written approval to any application for a FISA Court order to compel production of library circulation records, library patron lists, book sales records, book customer lists, firearm sales records, or medical records containing personally identifiable information.

Section 7 would grant recipients the right to consult an attorney, and to disclose the order to "any person necessary to produce the tangible things" or "other persons as permitted by the Director of the FBI or the Director's designee.

Section 7 also would grant recipients of Section 215 orders the right to challenge them and their gag orders in the FISA Court by filing a petition. This provision is not everything we would want :the only grounds for setting aside or modifying the order would be its "lawfulness;" the challenge would be decided "ex parte in camera" (i.e., in secret) .An appeal to FISA court of review is provided, but it also meets only in secret and only hears from government officials. The FISA Court is required to develop and issue guidelines for review of petitions within 60 days of enactment. One of the problems the court will have to address is that Section 215 orders are classified and only those with national security clearance can see them.

Section 7 provides for more detailed unclassified reporting on the use of Section 215 orders, including the total number of applications made for orders and the total number either granted modified, or denied, when the application or order involved the production of tangible things from a library, a book seller, the purchase of firearms, health information, or taxpayer return information.

Section 8 addresses Section 505 of the USA PATRIOT Act. It would grant recipients of National Security Letters the right to petition to an appropriate U.S. District court to modify or set aside the request. The court could modify or set aside the order if compliance "would be unreasonable or oppressive or would violate any constitutional or other legal right or privilege of the petitioner."

A right to challenge the gag order is provided, also in an appropriate U.S. District court . The court could modify or set aside the gag order if "there is no reason to believe the disclosure may endanger the national security of the United States, interfere with a criminal, counterterrorism, or counterintelligence investigation, interfere with diplomatic relations, or endanger the life of physical safety of any person." The court must consider as conclusive the certification by the government that disclosure might endanger the national security or interfere with diplomatic relations.

The bill would also permit disclosure of National Security Letter requests to an attorney or person whose assistance is necessary to comply with the request.

Section 8 would allow the Attorney General to seek enforcement of a National Security Letter if a recipient refuses to comply.

Section 9 Extends the sunsets for Sections 215 and 206 ("John Doe Roving Wiretaps") until December 31, 2009.

HR 3199 USA PATRIOT and Terrorism Prevention Reauthorization Act of 2005

Section 8 would require that the records requested under a Section 215 (of the USA PATRIOT Act) order be “reasonably expected” to be either foreign information not concerning a U.S. person, or relevant to clandestine intelligence activities or an ongoing investigation to protect against international terrorism. An investigation to "protect against international terrorism" has virtually no limits.

It would grant recipients the right to consult an attorney, and to disclose the order to "any person necessary to produce the tangible things."

It also would grant recipients of Section 215 orders the right to challenge them in the FISA Court. The orders themselves are classified; to challenge them, one has to have the security clearance to view them. The FISA Court meets only in DC, in secret, and only allows government officials to appear before it. The challenge would be decided "ex parte in camera" (i.e., in secret), with the only grounds for challenge being the "legality" of the order. An appeal to FISA court of review is provided, but it also meets only in secret and only hears from government officials. There is no change to the gag order.

Administrative Subpoenas

May 23
ALA, AALL, ARL and organizations across the political spectrum sent a letter to Senators Pat Roberts (R-KS) and John Rockefeller (D-WV) expressing opposition to granting to the FBI in national security investigations so-called “administrative subpoena” powers, which would allow the FBI to write its own search and disclosure orders with no judicial approval.

The letter notes that Attorney General Gonzales has repeatedly emphasized that the prior judicial approval required for Section 215 orders is a safeguard against abuse and has recently expressed willingness to discuss amendments to strengthen judicial oversight of orders under Section 215 of the PATRIOT Act. However, the "Attorney General’s assurances would be meaningless if the FBI could issue disclosure orders with no judicial approval."

Copy of the letter [pdf]

Proposed Senate Intelligence Committee Bill Expanding PATRIOT

The Senate Select Intelligence Committee is poised to markup a bill reauthorizing of the PATRIOT Act and broadly expanding the ability of the FBI to use administrative subpoena powers in a closed meeting for next Thursday, 26 May.

As we understand it, the Senate Intelligence Committee’s proposed legislation would:

• Make permanent PATRIOT Act powers without safeguards. The bill makes permanent, with one exception, all the expiring provisions of the PATRIOT Act. The only exception, section 223, protects privacy by giving victims of unlawful government surveillance a court remedy. The bill would allow that section to expire.
• Expand the use of “administrative subpoenas,” eliminating prior court review of FBI library and other private records demands for intelligence gathering purposes. The bill, thus, creates a new power for the FBI to obtain library and other private records without even the review of the Foreign Intelligence Surveillance Court. The bill does this even though the Justice Department and PATRIOT Act defenders have constantly pointed to this existing court review (which is inadequate because the court is directed by law to issue the order) in defense of the existing PATRIOT Act FISA records power. The new records power could be used to obtain all tangible things, including library records, business records, medical records, etc. The new power would make any modifications to section 215 less meaningful since the government can simply use the new power instead.
• Not provide adequate safeguards to protect library and other private records. While the bill would
  1. allow a recipient of a FISA records search order (Patriot Act section 215) to consult with an attorney or other person necessary to comply with the request, and
  2. make the standard for issuing an order explicitly made "relevant to" rather than "sought for," the bill offers no explicit right to challenge the records search order, or to challenge the gag order, even though multiple witnesses from the Department of Justice have stated that they would agree to such amendments.
• Appears to strike an existing First Amendment safeguard for records search powers. Under section 215 of the PATRIOT Act, where an application for records is made under FISA, there is an express proviso that "such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution." This safeguard is inadequate, but DOJ has pointed to it on countless occasions in defense of the PATRIOT Act.
• Create new statutory authority for intelligence investigators to track mail of ordinary citizens. The bill adds an entire new section to FISA on "mail covers" which allows intelligence investigators to track, without probable cause, the outside of any sealed mail sent or received or the contents of any unsealed mail. FISA was originally intended to provide some check on electronic surveillance for national security purposes, instead of criminal investigations. FISA is not necessarily based on any evidence of criminal wrongdoing.
• Expand greatly the amount of information obtained without probable cause through Internet surveillance. The bill expands substantially the amount of information that can be obtained, with a court order but without probable cause, from surveillance of so-called "routing information" through the Internet (pen registers and trap and trace devices), including: name, address, telephone number or IP address of the device, how long the subscriber has used the services, method of payment (including credit card numbers), and the periods of the subscriber’s usage.

Pen registers and trap and trace device capture information like telephone numbers dialed or received, the header of an e-mail, or the web address of a web site or web page viewed. They are based on a standard of relevance, rather than any individualized suspicion.

Security And Freedom Enhancement (SAFE) Act of 2005 (S. 737 and H.R. 1526)

The SAFE Act is a narrowly-tailored bipartisan bill that would revise several provisions of the USA PATRIOT Act. It would retain all of the expanded authorities created by the PATRIOT Act but place important checks and balances on these authorities. It would protect the constitutional rights of American citizens while preserving the powers law enforcement needs to fight terrorism. Among its provisions are two of particular interest to the library community:

Section 4. Privacy Protections For Library, Bookseller, And Other Personal Records Under Foreign Intelligence Surveillance Act of 1978. (Pertaining to Section 215 of the USA PATRIOT Act): The government would be able to obtain records from any entity -- including libraries, but only if they could show they had reason to believe the person whose records they seek is an agent of a foreign power. As is required for grand jury subpoenas, the SAFE Act would give the recipient of a FISA order the right to quash the order, require a showing by the government that a gag order is necessary, place a time limit on the gag order (which could be extended by the court), and give a recipient the right to challenge the gag order. The SAFE Act would require notice to the target of a FISA order if the government seeks to use the records obtained from the order in a subsequent proceeding, and give the target an opportunity to challenge the use of those records. Such notice and challenge provisions are required for other FISA authorities (wiretaps, physical searches, and pen registers and trap and trace devices).

Section 5. Procedural Protections For National Security Letters (Pertaining to Section 505 of the USA PATRIOT Act): The SAFE Act would restore the "agent of a foreign power standard" for using an NSL -- the government would have to show they had reason to believe the person whose records they seek is an agent of a foreign power. As is the case for grand jury subpoenas, the SAFE Act would give the recipient of an NSL the right to challenge the letter and the nondisclosure requirement, and place a time limit on the nondisclosure requirement (which could be extended by the court). As is the case for FISA authorities, the SAFE Act would give notice to the target of an NSL if the government seeks to use the records obtained from the NSL in a subsequent proceeding, and give the target an opportunity to challenge the use of those records.

The SAFE Act would also require increased public reporting.

Freedom to Read Protection Act

Rep. Bernie Sanders (I-VT) introduced the "Freedom to Read Protection Act," HR 1157, on March 8th. HR 1157 would return the standards for the FBI to obtain FISA court orders and warrants to investigate library patrons and bookstore customers to the pre-PATRIOT Act standards. Under this legislation, the FBI would still have access to these records with a court-ordered search warrant but some type of reasonable cause would be required not the lower standard created by the USA PATRIOT Act. HR 1157 also calls for public reporting to determine how provisions of the USA PATRIOT Act are being implemented in order to better assess civil liberties implications.

REAL ID Act of 2005, Section 202

The Real ID Act of 2005 (H.R. 418) would, in Section 202, tighten driver's license and identity card requirements for immigrants. The bill is reportedly headed for the House floor on a fast track. The measure is likely to reach the House floor the week of Feb. 7.

The legislation would require people applying for, or seeking renewal of, state- issued driver's licenses and ID cards to prove their "lawful presence" in the United States. The legislation is similar in many respects to language that is included in the Intelligence Reform and Terrorism Prevention Act of 2004 (P.L. 108-458) that passed late last year. It differs by adding back in the language concerning immigrants that was struck from that bill.

The ALA has expressed concern about the move to standardized machine-readable driver's licenses and personal identification cards because of the potential privacy implications for library users.

Driver's licenses are commonly used by the public as a means of identification for obtaining a library card and driver's license numbers have been entered into the user's registration record, and could potentially result in the ability to search library use by individuals. Additionally, some states have prohibited public bodies from accepting non-U.S. identification cards for receipt of public services - including library services.

At least 10 states currently issue ID cards to people in the country illegally. Under Sensenbrenner's bill, licenses from those states could not easily be used as identification for federal purposes, such as at airports. License holders might be asked for further proof of their lawful presence before their state-issued identification would be accepted by federal officials.

• PATRIOT and Privacy bills side by side comparison: Section 216
• PATRIOT and Privacy bills side by side comparison: Reporting
• Op-Ed Pieces Supporting the Freedom to Read Protection Act of 2003 (H.R.1157)
• PATRIOT and Privacy bills side by side comparison: Section 505a
• PATRIOT and Privacy bills side by side comparison: Section 215