ALAWON: American Library Association Washington Office Newsline Volume 12, Number 71 August 1, 2003 In This Issue: ALERT: [1] Senators Murkowski and Wyden introduce new bill: Protecting the Rights of Individuals Act; [2] Library Supporters Asked to Push for Senate Cosponsors for Murkowski-Wyden bill as well as Senator Feingold's S. 1507. Last night, July 31, Senators Lisa Murkowski (R-AK) and Ron Wyden (D-OR), introduced the "Protecting the Rights of Individuals Act." This bill contains many provisions that will help to restore some protections of civil liberties weakened by the USA PATRIOT Act. Several provisions are of particular interest to the library community. Introduction of the Murkowski-Wyden bill occured on the same day as the introduction by Senator Russ Feingold (D-WI) of another Senate bill, S. 1507, addressing library confidentiality issues created by the USA PATRIOT Act. (See ALAWON of July 31.) ACTION: Please call your Senators and urge them to support and cosponsor both of these bills. You can contact the Senators and learn more by using ALA's Legislative Action Center http://congress.nw.dc.us/ala/home/ The Murkowski-Wyden proposal addresses a broad set of problems raised by the USA PATRIOT Act. The following provisions are of special interest to libraries. Sec. 4 - Access to Records under FISA Prior to enactment of the USA PATRIOT Act, the FBI was permitted to obtain, through a FISA (Foreign Intelligence Surveillance Act) court order, records from common carriers, public accommodation facilities, physical storage facilities, or vehicle rental facilities. Section 215 of the USA PATRIOT Act greatly expanded the types of records that the FBI could obtain by permitting the FBI to require, pursuant to such a court order, the "production of any tangible thing" from any entity - which can include records, computers, etc. from libraries. Sec. 4 would still permit the FBI to obtain any tangible thing from any entity. It does not take any needed authority away from the FBI, but, rather, only returns the standards for the FBI to get orders from the FISA Court to the standards that applied pre-USA PATRIOT. Specifically, it requires that the FBI name a person, articulate specific facts to the Court that the FBI has "reason to believe" that the person whose records are sought is "a foreign power or an agent of a foreign power." It would also require the FISA Court to find that on the basis of specific articulate facts there is reason to believe that the named person whose records are sought is "a foreign power or an agent of a foreign power." Additionally, in the case of library records, medical records, and other records involving the purchase or rental of books, video, or music, or the accessing of legal and publicly available material via the Internet, the standard of review is raised to a higher level: the FBI must submit specific facts that there is a "probable cause" (a higher standard) to believe that the named person whose records are sought is "a foreign power or an agent of a foreign power." Part (b) of Section 4 addresses "National Security Letters." In certain instances, under 18 U.S.C. 2709, it is possible for the FBI to require the production of records and information pertaining to wire or electronic communications through a National Security Letter, where the only requirement is for the agent of the FBI to certify that the records and information sought are "relevant to an authorized investigation." The FBI has said it is more likely to use these to go into libraries because they are easier to get - they are "administrative subpoenas" that they can get internally in the FBI - without having to go before any judge. Sec. 4(b) would clarify that a library shall not be treated as a wire or electronic communication service provider for purposes of 18 U.S.C. 2709, so that a library cannot be required to turn over Internet usage records (including e-mail) about its patrons. Sec. 6 - Judicial Review for Pen Registers and Trap and Trace Devices One of the rationales put forward for passage of the USA PATRIOT Act was that the authorities used by law enforcement needed to catch up with technology. One authority - to track calls made to and from a particular phone ("trap and trace" and "pen register," respectively) - was updated by applying it to electronic communications (including e-mail and Internet usage). Typically, in order to obtain the content of communications the FBI must meet a "probable cause" standard under the wiretap statute. Because pen/trap orders are not authority to wiretap - to "listen in" - the FBI does not have to meet this standard to obtain them. It is not entirely clear, moreover, precisely what constitutes the "content" of e-mails and Internet usage and the USA PATRIOT Act did not provide a definition. Sec. 6(c) would impose a specific limitation on what aspects of electronic communications could be captured with a pen/trap order. It ensures that with a pen/trap order, the FBI could capture only the information on a web address up to the first backslash, ie: http://www.senate.gov. Capturing any information after the initial backslash would not be permitted. Additionally, capture of any information in the "Subject" line of an electronic communication would not be permitted with a pen/trap order. Sec. 8 - Public Reporting under FISA Sec. 8 would require the Attorney General to issue annual public reports on: the number of orders for electronic surveillance, physical searches, pen registers and trap and trace devices, and access to records granted, modified, or denied in the preceding calendar year; the number of applications made to be served on the public media; the number of U.S. persons targeted; the number of times the Attorney General has authorized information obtained to be used in a criminal proceeding; and the number of times a statement was completed to accompany a disclosure of information under FISA for law enforcement purposes. Currently, there is no public disclosure on how FISA courts reach their verdicts. Sec. 8 would also require, in a manner consistent with protecting the national security of the United States, that portions of certain documents and applications filed with FISA courts, and certain opinions and orders of the courts, that include significant construction or interpretation of the provisions of this Act or any provision of the United States Constitution, be made public. The first report would include the four preceding calendar years in addition to that year. The texts for both of these bills is not available at this writing on the Library of Congress Thomas bill service. Check shortly for the full texts at the Thomas site: http://www.senate.gov/pagelayout/legislative/g_three_sections_with_teasers/legislative_home.htm For further information, contact Patrice McDermott pmcdermott@alawash.org or Lynne Bradley lbradley@alawash.org - 202-628-8410. ****** ALAWON (ISSN 1069-7799) is a free, irregular publication of the American Library Association Washington Office. All materials subject to copyright by the American Library Association may be reprinted or redistributed for noncommercial purposes with appropriate credits. To subscribe to ALAWON, send the message: subscribe ala-wo [your_firstname] [your_lastname] to listproc@ala.org or go to http://www.ala.org/washoff/alawon. To unsubscribe to ALAWON, send the message: unsubscribe ala-wo to listproc@ala.org. ALAWON archives at http://www.ala.org/washoff/alawon. ALA Washington Office, 1301 Pennsylvania Ave., N.W., Suite 403, Washington, D.C. 20004-1701; phone: 202.628.8410 or 800.941.8478 toll-free; fax: 202.628.8419; e-mail: alawash@alawash.org; Web site: http://www.ala.org/washoff. Executive Director: Emily Sheketoff. Office of Government Relations: Lynne Bradley, Director; Camille Bowman, Mary Costabile, Don Essex, Patrice McDermott and Miriam Nisbet. Office for Information Technology Policy: Rick Weingarten, Director; Kathy Mitchell, Carrie Russell. ALAWON Editor: Bernadette Murphy.