ALAWON: American Library Association Washington Office Newsline Volume 14, Number 73 August 1, 2005 In This Issue: Senate Passes PATRIOT Reauthorization Bill Late on Friday, July 29, the final day before its 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. We will get back to you with message and contacts. For now, 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 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. 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. Both bills allow disclosure of receipt of a Section 215 order 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;" the House version only "with respect to an order under this section." 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) and the secrecy/gag order, but only in the FISA court. 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 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. 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. 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. ****** 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. 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