ALAWON: American Library Association Washington Office Newsline Volume 14, Number 75 August 3, 2005 In This Issue: Inform Your Member of Congress about the USA PATRIOT ACT and Libraries (a sample letter) Library Supporters— several of you have requested a sample letter to use to craft a response to your Members of Congress who have made statements or posted letters on their websites that oppose changes to the PATRIOT ACT that would support reader privacy. We suggest that, if you have not done so already, you visit the websites of your Members of Congress to see what they have to say about the USA PATRIOT Act and libraries. If your Members are parroting Department of Justice language (see Life and Liberty.gov), you may want to write and let them know what you think of their perspective. Below are some points that can be used to draft a letter about your library and to dispel myths and misinformation that your Member of Congress may have received from the Department of Justice and other sources. If you do write, you should reference language used by the Member on his or her website and use the points below to respond if you disagree with the statements. These are also points that you could use to write a letter to the editor of your local paper. Points to use in your letter to counter criticism of ALA's position on the PATRIOT ACT: * The library profession does not oppose the entire PATRIOT ACT. Libraries are places for the free flow and exchange of ideas essential to an informed citizenry. Therefore, the library profession opposes only those sections (specifically Section 215 and Section 505) of the PATRIOT ACT that currently hinder the free flow of ideas and that infringe on rights guaranteed under the Constitution. * We think that the Department of Justice has distorted the position of ALA and libraries. First, the DOJ has argued that section 215 does not mention library records, and therefore, presumably libraries should not be concerned with this issue. However, the actual language of Section 215 authorizes the FBI to go to the Foreign Intelligence Surveillance Act (FISA) Court to obtain an order allowing them to compel production of "any tangible thing" sought in foreign intelligence cases – or to protect against international terrorism -- from any entity. Library records are incorporated – as the Justice Department has acknowledged – as "tangible things." * The Department of Justice claims that Section 215 is "more protective of privacy than the authorities for ordinary grand jury subpoenas" because it can only be used to investigate "U.S. persons, and to protect against international terrorism or clandestine intelligence activities." It should be noted that many persons who are not U.S. citizens or resident aliens use their public libraries for legal purposes, including the online application process for immigration and naturalization. Moreover, there is essentially no limit to what might conceivably be sought "to protect against international terrorism." * The Justice Department has argued that it can obtain business records (including "any tangible thing" from libraries) using a grand jury subpoena without judicial approval at all. They claim that Section 215, because it requires an order to be issued by a FISA Court judge, provides better protection for libraries and, thus, librarians should not be so concerned about this provision of the USA PATRIOT Act. However, while the judge isn't actively involved in the issuing of a grand jury subpoena, the grand jury subpoena is subject to other checks not present in the FISA context: * First, it is constrained by the criminal code and the definitions of particular crimes - a grand jury can obtain only those records relevant to investigation of a particular crime. Thus, the scope of a criminal investigation is typically far narrower than an intelligence investigation, where arguably almost anything could be relevant. * Second, the grand jury process is run by a federal prosecutor, who serves to constrain FBI over-reaching. * Third, the recipient of a grand jury subpoena is normally free to disclose information about the subpoena, providing a "sunshine" check on the process. Recipients of Section 215 orders are statutorily prohibited from telling anyone that they have received them. * Fourth, while the judge isn't actively involved in the issuing of a grand jury subpoena, if issues arise there is a judge who can resolve them. For example, an individual can move to quash a grand jury subpoena -- and a judge would decide. * Further, the DOJ argues that Section 215 is more protective because it requires a FISA court to "explicitly authorize the use of section 215 to obtain business records," unlike a grand jury subpoena "which is typically issued without prior judicial review or approval." In fact, the requirement that a FISA court authorize the use of Section 215 to obtain business records does not provide more protection, because the request currently does not have to be supported by specific reasons ("specific and articulable facts") showing that the person is a suspected terrorist and how those records relate to the investigation. Without this requirement there is no protection against unwarranted fishing expeditions conducted by law enforcement officials. Further, as noted above, under the new FISA standards the FBI can now seek not only records but also "any tangible things," which is an expansion that warrants adherence to constitutional standards for privacy. * The DOJ has stated Section 215 has not been used to seek library records. DOJ is quite happy to declassify such information when it suits their purposes, but has not been forthcoming to congressional requests for information about use of this authority. The absence of evidence showing abuses of current authority is not a reason to refuse to revisit that authority and to maintain sunsets for Section 215. * The Department of Justice states Section 215 provides for congressional oversight and a FISA Court that must "explicitly authorize" FISA requests. Under current law, the FISA Court is required ("shall") issue the court order. Only 35 of the FBI's requests, according to testimony given in Congress, have ever even been modified and only one has ever been refused (and it was granted on appeal). Under current law, the library (or any other entity) that receives a Section 215 order has no opportunity to challenge either it or its accompanying non-disclosure (gag) order. SECTION 505: * Section 505 gives the FBI authority to issue "National Security Letters" (NSLs) ordering certain kinds of businesses to turn over customer records. The PATRIOT Act amended the underlying law to allow the use of NSLs to obtain information about anyone (rather than just a suspected spy or terrorist). The recipient of a National Security Letter is not allowed to disclose the order to the subject of the search or to an attorney to obtain legal advice, and cannot petition a court to modify or set aside the letter or the nondisclosure requirement. These provisions have been found (Doe and ACLU vs. Ashcroft et al. ) to clearly violate the First Amendment right to speech and the Fourth Amendment right against unwarranted search and seizure by government officials. Closing America's libraries are one of the few safe community and family oriented places in society where all people can come for education and for the free exchange of ideas. It's the combination and balance of the free exchange of ideas and national security that will work to prevent future terrorist attacks. ****** 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; Web site: http://www.ala.org/washoff. Executive Director: Emily Sheketoff. Office of Government Relations: Lynne Bradley, Director; Don Essex, Joshua Farrelman, Erin Haggerty, Patrice McDermott and Miriam Nisbet. Office for Information Technology Policy: Rick Weingarten, Director; Carrie Lowe, Kathy Mitchell, Carrie Russell. ALAWON Editor: Bernadette Murphy.