Contact: Frank DiFulvio

ALA Press Officer, Washington Office

202-628-8410

For Immediate Release

May 18, 2004

American Library Association opposes bill to establish penalties related to "administrative subpoena" powers

HR 3179 would require up to five years in prison

for violating gag orders  on national security letters

WASHINGTON -- The USA PATRIOT Act gave the FBI increased authority to obtain databases of records without a court order, or any standard for protecting individual privacy. Section 505 of the Act amended the "national security letter" (NSL) power to eliminate the need to assert individual suspicion, much less probable cause, before issuing such a letter. It is the position of the American Library Association (ALA) that the government doesn't need these powers, also known as "administrative subpoenas," in order to obtain such records. An ordinary search warrant or grand jury subpoena is sufficient, and can be used to investigate any crime, including one alleging terrorism. 

"If the government is permitted to ask a court to enforce such subpoenas, NSL recipients should in turn be allowed to participate in the proceedings, and should be able to initiate their own court challenges," insisted Patrice McDermott, ALA Washington Office Deputy Director of the Office of Government Relations (OGR). "After all, recipients of grand jury subpoenas can move to squash such subpoenas if a request is overbroad, unduly burdensome, or seeks privileged information. Why shouldn't recipients of national security letters have the same rights, especially if they are the subject of judicial contempt for failure to comply?" she concluded.

Currently, compliance with the letter and a gag provision that prohibits a recipient from protesting such a letter are mandatory under the law, although no specific penalties are listed. HR 3179 amends the law to establish criminal penalties of up to five years in prison for violating the gag order provision. The bill would allow the Department of Justice to ask a court to order an NSL recipient to fully comply.

"The recipient should also be able to contact legal representation in order to challenge the gag provision in court without the concern of being criminally prosecuted for violating the provision," McDermott concluded.