Issues & Advocacy

The USA PATRIOT Act

What is the USA PATRIOT Act?
Why does it matter to libraries?
Why is the ALA involved with the USA PATRIOT Act and other surveillance issues?
Reauthorization History
Further Reading

What is the USA PATRIOT Act?

Patriots Don't Need Privacy. Support the PATRIOT Acts.

The “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism” Act, or USA PATRIOT Act, was introduced less than a week after September 11, 2001, and was signed into law on October 26, 2001.

The bill broadly expanded law enforcement’s surveillance and investigative powers and amended more than 15 different statutes, including the Electronic Communications Privacy Act of 1986 (ECPA), the Computer Fraud and Abuse Act (CFAA), the Foreign Intelligence Surveillance Act (FISA), and the Family Education Rights and Privacy Act (FERPA).

Among other things, the USA PATRIOT Act’s intent was to update wiretap and surveillance laws for the Internet age, addressing real-time communications and stored communications (e-mail, voicemail), and to give law enforcement greater authority to conduct searches of property.

President Bush signed the USA PATRIOT Act reauthorization legislation, which differs somewhat from the original legislation into law on March 9, 2006. A sunset of December 31, 2009, was established for Section 215 of the USA PATRIOT Act, commonly referred to as the “library provision.”

Why does it matter to libraries?

Libraries are key sources of information on all kinds of subjects and from all perspectives for their communities. Reading has always been one of our greatest freedoms. The written word is the natural medium for the new idea and the untried voice from which come the original contributions to social growth.

Libraries provide a place to exercise intellectual freedom: a free and open exchange of knowledge and information where individuals may exercise freedom of inquiry as well as a right to privacy in regards to information they seek. Privacy is essential to the exercise of free speech, free thought, and free association. In a library, the subject of users' interests should not be examined or scrutinized by others.

The ALA believes certain sections of the USA PATRIOT Act endanger constitutional rights and privacy rights of library users. Libraries cooperate with law enforcement when presented with a lawful court order to obtain specific information about specific patrons; however, the library profession is concerned some provisions in the USA PATRIOT Act go beyond the traditional methods of seeking information from libraries.

For additional information on how the USA PATRIOT Act affects intellectual freedom, visit the ALA's Office for Intellectual Freedom (OIF) web site, especiall their Privacy and Confidentiality section. ALA’s Resolution on the USA PATRIOT Act and Resolution Reaffirming the Principles of Intellectual Freedom in the Aftermath of Terrorist Attacks are also useful resources. What can you do next? Visit the Bill of Rights Defense Committee's page on Resources for Defending Civil Liberties for guidelines.

Why is the ALA involved with the USA PATRIOT Act and other surveillance issues?

Protecting patron privacy and the confidentiality of library records are deep and longstanding principles of librarianship that guide the ALA’s legislative and policy activities on privacy and surveillance issues. The freedom to read is an inherently important part of our First Amendment rights and civil liberties.

These principles have been articulated in key resolutions passed by the ALA’s governing body, the ALA Council, and include numerous statements regarding the USA PATRIOT Act, national security issues and other federal surveillance and privacy polices.

Prior to the PATRIOT Act, these principles were articulated through existing laws, still on the books in 48 states and the District of Columbia to protect the confidentiality of library records. Two additional states have similar policies established by letters from their attorney generals.

Also, during the ALA annual conference in July 2005 the ALA Council passed a resolution urging Congress to allow Section 215 of the USA PATRIOT Act to sunset. However, legislation has been introduced in the 111th Congress indicating otherwise.

Reauthorization History

Three provisions of the USA PATRIOT Act will expire by the end of the year, triggering consideration of reauthorization legislation. The expiring provisions are authorizations for roving wire taps, the “lone wolf” measure, and orders for tangible things (Section 215, commonly referred to as the “library provision”).

On September 17, 2009, Senators Feingold (D-WI) and Durbin (D-IL) introduced the Judiciously Using Surveillance Tools In Counterterrorism Efforts (JUSTICE) Act to address problems with surveillance laws that threaten the rights and liberties of American citizens.

On September 22, Sen. Patrick Leahy (VT-D) introduced S. 1692, the USA PATRIOT Act Sunset Extension Act of 2009. Hours before the Senate Judiciary Committee’s first mark-up of the S. 1692, a bill negotiated by Leahy and Dianne Feinstein was substituted in place of the original S. 1692. The substitute bill substantially weakened the reforms the library community has sought relevant to Sec. 215 and national security letters.

During the mark-ups, several senators attempted a number of amendments; none of the amendments that would have improved protection of civil liberties passed.

The substitute “Feinstein” bill was passed by the Judiciary Committee with an 11 to 8 vote at the second markup on October 8. The ALA continues to seek reforms that would:

Require law enforcement officials to show individualized suspicion that records or other items being sought pertain to a foreign power or agent, a person in contact with a suspected agent, or a suspected agent who is the subject of the investigation; and
Require records other items being sought to be described with sufficient particularity to allow them to be identified – reducing the danger that the FBI will engage in fishing expeditions into personally identifiable information in library or bookstore records; and
Required the Foreign Intelligence Surveillance Act (FISA) Court to make a finding that these facts have been sufficiently demonstrated; and
Show cause for a FISA court to approve a gag order; gage orders will expire at the end of six months unless cause is shown to reauthorize them; and
Allow a recipient of a FISA Section 215 records-search order to consult with an attorney or others for help responding to the request; and
Guarantee a recipient the right to challenge any gag order; and
Ensure due process for any recipient challenging a search or gag order; and
Set a sunset date for Section 215 of no more than four years, to ensure ongoing oversight and assessment of the impact of this provision on civil liberties; and
Intensify oversight of the Section 215 and national security letters provisions of the USA PATRIOT Act and other laws that limit the privacy rights of library users, library employees and the general public.

Current Reauthorization Legislation

Senate

JUSTICE Act of 2009
On September 17, 2009 Senators Feingold (D-WI), Durban (D-IL), Tester (D-MT), Udall (D-NM), Bingaman (D-NM), Sanders (I-VT), Akaka (D-HI) and Wyden (D-OR) introduced legislation to address problems with surveillance laws that threaten the rights and liberties of American citizens. The Judiciously Using Surveillance Tools In Counterterrorism Efforts (JUSTICE) Act, S. 1686 would reform the USA PATRIOT Act, the FISA Amendments Act and other surveillance authorities to protect the constitutional rights of Americans while ensuring that the government has the powers it needs to fight terrorism and collect intelligence.

More information on this legislation is available on Sen. Feingold’s Web site.

USA PATRIOT Act Sunset Extension Act of 2009
Chairman Leahy and Sens. Cardin and Kaufman introduced the USA PATRIOT Act Sunset Extension Act of 2009, a bill to reauthorize the expiring provisions on September 22, 2009. This bill respects constitutional rights by increasing judicial review of the use of surveillance authorities that sweep in U.S. citizens. The bill also expands public reporting to ensure that Americans can monitor the use of these authorities.

There is a provision (pdf) in the amended version of S. 1692 that slightly raises the legal standard to obtain a Section 215 order for “library circulation records or patron lists” – a very narrow definition. This “fix” does not address “reader privacy” as a whole, so unfortunately bookstores are not covered in this provision. Further, the provision only addresses 215 orders and does nothing for increasing the legal standards for national security letters which are far more troubling. The substitute “Feinstein” bill was passed by the Judiciary Committee with an 11 to 8 vote at the second markup on October 8th.

More information on this legislation is available on Sen. Leahy’s Web site.

USA PATRIOT Reauthorization Act of 2009
On October 29, 2009, Sen. Sessions (R-AL) introduced the USA PATRIOT Reauthorization Act of 2009 (S. 2336) with Sens. Lieberman (I-CT) and Bond (R-MO). More information on this legislation is available on Sen. Bond’s Web site.

House

USA PATRIOT Amendments Act of 2009
On October 20, 2009, House Judiciary Committee Chairman John Conyers (D-MI) and Representatives Jerrold R. Nadler (D-NY) and Bobby Scott (D-VA) introduced the USA PATRIOT Amendments Act of 2009 (H.R.3845). The USA PATRIOT Amendments Act of 2009 includes several key reforms that restore important civil liberties without diminishing the government’s ability to conduct legitimate national security investigations. Chief among these are:

Prohibition of use of Section 215 orders to obtain personally identifiable information about patrons from libraries or booksellers;
Meaningful judicial review of Section 215 orders, NSLs, and the gag orders that prevent recipients from talking about these orders;
Rational limits on gag orders including limits on their duration once challenged;
Rational limits on the scope of NSLs so that they cannot be used unreasonably to gather information on innocent Americans;
Minimization procedures to insure that information obtained using these powers is destroyed once it is no longer relevant to an ongoing investigation; and
Yearly audits of the use of these powers and a new “sunset” that will give Congress an opportunity to consider further reform based on those audits.

More information on this legislation is available on Rep. Nadler’s web site.

The House of Representatives Judiciary Committee’s passed H.R. 3845 on November 6, 2009.

Counterterrorism Authorities Improvements Act of 2009
On October 29, 2009, House Intelligence Chairman Reyes with Representatives Boren, Hastings, and Ruppersberger introduced H.R. 3969, legislation to reauthorize expiring provisions of the USA PATRIOT Act.
More information on this legislation is available on Thomas.

JUSTICE Act Of 2009
On November 3, 2009, Representative Holt introduced the House version of the JUSTICE Act (H.R. 4005), a bill that is almost identical to S. 1686 introduced in October by Senator Feingold. More information on this legislation is available on Rep. Holt’s Website.