ALAWON: American Library Association Washington Office Newsline Volume 15, Number 15 Date: February 10, 2006 In This Issue: The American Library Association Opposes USA PATRIOT Act Compromise On February 9th, four Republican Senators (John Sununu - NH. Lisa Murkowski - AK, Chuck Hagel - NE, and Larry Craig - ID), who had joined in the threat to filibuster the House Conference Report on the Reauthorization of the USA PATRIOT Act, announced that they had negotiated a compromise deal with the White House. According to informed sources on the Hill, the White House and Republican leadership now will be able to garner enough votes to ensure passage in the Senate. It is not yet certain where House Judiciary Committee chairman James Sensenbrenner stands on these proposed changes. ALA opposes the proposed compromise. It lacks necessary strengthening of the standards (by requiring individualized suspicion) for obtaining a to Section 215 order, and does not provide the recipient of a Section 215 court order meaningful opportunity to challenge the order or the attached gag order in a court of law. The proposed compromise includes these changes: * "Ability to challenge the gag order attached to a Section 215 order." The possibility only is available after one year and the FISA judge may only overturn the gag if the government does not certify and the judge finds that there is no reason to believe that the disclosure "may endanger the national security of the U.S., interfere with a criminal, counterterrorism, or counterintelligence investigation, interfere with diplomatic relations, or endanger the life of physical safety of any person." The certification of the government to these possibilities is to be taken as conclusive. * Removal of the requirement that a recipient of an NSL inform the FBI of the identity of an attorney to whom disclosure was made or will be made to obtain legal advice or legal assistance with respect to the order. The proposal still requires the recipient to, upon the request of the Director of the FBI, identify anyone else to whom a disclosure is made (or to whom the recipient is intending to disclose). * Language asserting that libraries, when functioning in their traditional roles - including providing Internet access, are not subject to NSLs. However, the language states that libraries are subject if the library "is providing the services defined under" Section 2510(15) of title 18, which says " "electronic communication service" means any service which provides to users thereof the ability to send or receive wire or electronic communications." The FBI has repeatedly asserted that all libraries that provide Internet access come under this definition. So, it is very unclear whether this section as now written provides any real protection to libraries. ALA president, Michael Gorman, expressing concern about the lack of protections in the compromise, said, "It hardly seems constitutional that there is still no individualized suspicion requirement and that a recipient of a subpoena must wait a full year to challenge a gag order. We're glad to see that there is still a 4-year sunset provision for Section 215, which will allow oversight again in four years, but disappointed that the negotiators just did not go far enough." "The fig leaf of the alleged remedy for library patrons is the change which restricts the use of National Security Letters to obtain records on traditional library services, including use of the Internet, but this does not provide clear protection." Executive Director of the Washington office, Emily Sheketoff said of the compromise, "We appreciate the supporters from both sides of the aisle who tried to properly balance the civil liberties concerns. Unfortunately, the White House prevailed and the Senators who negotiated this bill were unable to address the very real concerns in Section 215 - the standard for its use and the ability to meaningfully challenge these orders in a court of law." ALA continues to call on Congress to pass the SAFE Act, which would help cure many of the problems that are left unfixed in this new proposal. Legislators have until March 10 to vote to reauthorize the USA PATRIOT Act, but we anticipate that a vote in the Senate will occur soon. For more information on the American Library Association's efforts to amend Section 215 of the USA PATRIOT Act please visit ****** ALAWON (ISSN 1069-7799) is a free, irregular publication of the American Library Association Washington Office. 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