Congress Rejects PATRIOT Act Re-Write, Improvements Still Possible

On Friday the House and Senate both completed their mark ups of PATRIOT Act reauthorization bills. Here’s a quick update from the Center for Democracy and Technology:

Congress Rejects PATRIOT Act Re-Write, but Modest Improvements Still Possible

1)    House and Senate Committees Renew PATRIOT with Mostly Minor Changes
2)    The Risks of National Security Letters
3)    House Bill Offers More Significant Change to NSL Authority
4)    Obama Administration Uses Secret Briefings to Resist Strong Standards for FBI Investigations

Civil Lib Groups Endorse H.R. 3845, American Lib Assoc. Issues Action Alert

A coalition of 20 civil liberties organizations, including the Center for Democracy & Technology (CDT), released a letter today endorsing the USA Patriot Amendments Act (H.R. 3845) and pointing out the failures of the Senate’s PATRIOT Act Sunset Extension Act (S. 1692). As their names suggest, the Amendments Act proposes reforms to the expiring sections of the USAPA, while the Extension Act pretty much extends the USAPA provisions with very few promising changes. The next review will be in 2013.

CDT compiled this very helpful chart that compares the two bills to the current law. Check out the difference on gag orders (p. 2 and 4) and on Section 215 orders that would capture personal info from a library or bookseller (p. 3). Also note that H.R. 3845 places limits on roving wiretaps, and proposes the “lone wolf” provision be allowed to expire.

Today, the American Library Association (ALA) endorsed the ACLU’s call to action and expressed its support for the House reform bills as well. The ALA alert includes background info and talking points.

H.R. 3845 and 3846 will be “marked up” next Wednesday, Nov. 4. That means now’s the time to contact your reps. Yes, especially if you want to push this debate even further around issues of immigrant rights and profiling. Remember it was during the Senate mark-up period earlier this month that Sens. Feinstein and Leahy abandoned their commitment to curb dragnets against individuals, communities and human rights orgs. Some California Reps., like Dem. Jane Harman, are already supporting this legislation. Can’t hurt to remind her.

What else can you do? Write letters to the editor. Get FISA Right posted some templates to get you started.

View full Center for Democracy & Technology post.

House Judiciary Session Scheduled

The House Judiciary Committee is expected for a classified hearing on Patriot Act issues and proposed surveillance reforms on Thursday October 29 at 2:30pm EST. There are several ways to stay up-to-date and participate in the public discussion. But, most importantly, contact your state reps right now and consider writing an editorial in your local papers.

1. Contact your representatives now using the new action forum posted by the ACLU. The action text, thankfully, draws attention to some of the oversights in the current reform legislation, calling on representatives to continue pushing for stronger public protections and repeal of expanded FBI powers. In particular we need to continue demanding changes to Section 505 as well as the slippery definition of “material support” which leaves social justice and human rights organizations vulnerable to targeting and criminal prosecution. Add your own two cents now.

2.Write an op-ed or letter to the editor. I haven’t done a Nexis search to confirm this, but Get FISA Right posted on Tuesday that media coverage of the surveillance reform bills H.R. 3845 and H.R. 3846 has been slim to nonexistent. Here they provide Letter to the Editor templates you can use to raise these issues in your local papers.

3. Participate in today’s live discussion at the Patriot Act Action Hub.

Read more:

From today’s Huffington Post: Sen. Wyden warns Congress to abandon hasty fear-based policymaking.

From Irregular Times: A round up of information on the reform legislation being considered, H.R. 3845 and 3846.

See also, my prior posts on the California Library Association’s Patriot Act resolution (make your own!) and the need for deeper coalition building on these issues (includes more recommended resources).

H. Resolutions Bring PATRIOT Reforms Back Into Focus

Tuesday, the House Representatives proposed new legislation to keep the focus on needed changes/repeals to the USA PATRIOT Act by the end of 2009. Track the Patriot Amendments Act of 2009 (H.R. 3845) and the FISA Amendments Act of 2009 (H.R. 3846) on GovTrack, also includes the full text of the bills and list of cosponsors.

These bills were introduced by House Judiciary Committee Chairman John Conyers, Jr. (D-MI), Constitution, Civil Rights, and Civil Liberties Subcommittee Chairman Jerrold Nadler (D-NY), and Crime, Terrorism, and Homeland Security Subcommittee Chairman Bobby Scott (D-VA).

Additional analysis of the Senate Judiciary PATRIOT Act extension bill were covered in a prior post, and numerous background sources on the law (treatises, advocacy orgs, articles) are covered in my USAPA 2009 Resource Guide.

Calif. Library Association Asks Congress to Do What Judiciary Did Not

October 13, 2009 • SACRAMENTO, CA — The California Library Association (CLA) has just announced a resolution calling on Congress to dramatically revise the up-for-renewal USA PATRIOT Act, passed hurriedly in the weeks following the 9/11 attacks.

Librarians have been front-line opponents of certain provisions of the PATRIOT Act since its passage. The Act has made it possible, under Section 215, for the FBI to request and obtain library records for large numbers of individuals without reason to believe they are involved in illegal activity. This jeopardizes the basic ethics of the library profession, expressed in the Library Bill of Rights of the American Library Association.

Expanding on the American Library Association’s PATRIOT Act resolution last July, the CLA resolution goes further to address imminent First and Fourth Amendment concerns with Section 505. This provision grants the FBI broad authority to sidestep constitutional safeguards though use of National Security Letters to obtain information.

CLA Intellectual Freedom Committee chair, Mary Minow, a leading expert on library law, said, “It’s past time for the blatantly unconstitutional aspects of this legislation to be removed from the books, and now is the opportunity for Congress to act.”

Two sections of the PATRIOT Act are currently up for reauthorization, with sunsets at the end of December 2009, and librarians across the country see this as an opportunity to correct those provisions that attack basic civil liberties. CLA’s resolution calls for Congress to allow Section 215 to sunset, to amend Section 505 to “include a clear exemption for library records,” and in general to intensify Congressional oversight of the use of the Act.
* CLA Resolution on 2009 Reauthorization of the USA PATRIOT Act (PDF, 481k)

For more information, please contact:

Mary Minow, Chair,
CLA Intellectual Freedom Committee
408-366-0123

Amy Sonnie, Member,
CLA Intellectual Freedom Committee,
415-823-0497

or cla_ifc  [a t]  earthlink [dot]  net

Feinstein, Judiciary Say We Deserve Even Fewer Rights

Unfortunate news. Yesterday, the Senate Judiciary voted to extend expiring PATRIOT Act sections for another four years. The vote was 11-8 with California’s Sen. Dianne Feinstein, as expected, among the majority in favor of prolonging the FBI’s expanded powers. I have it on good authority that Feinstein does not want to be “hounded by librarians.” This is second-hand, but let’s consider that a compliment!

The issue is now on to the Senate floor, making public and organizational pressure even more important. Let’s increase the hounding!

Judiciary Panel Approves Patriot Act Sections

New York Times, The Caucus, by Charlie Savage

The Senate Judiciary Committee on Thursday approved legislation to reauthorize three sections of the so-called Patriot Act that are set to expire at the end of the year, after largely rejecting a series of proposed changes to surveillance laws sought by civil liberties and privacy advocates.

By a vote of 11 to 8, the committee sent the legislation on to the Senate floor. The bill would extend provisions that expanded the power of the F.B.I. to seize records and to eavesdrop on phone calls and e-mails in the course of counterterrorism investigations. [continue reading]

Obama Sides with Republicans; PATRIOT Act Renewal Bill Passes Senate Judiciary Committee Minus Critical Civil Liberties Reforms

Electronic Frontier Foundation, Deeplinks

…the Committee this morning voted to accept seven Republican amendments to the USA PATRIOT Act Sunset Extension Act to remove the few civil liberties protections left in the bill after it was already watered down at last Thursday’s Committee meeting. Surprisingly and disappointingly, most of those amendments were recommended to their Republican sponsors by the Obama Administration. [read full article]

Leahy, Feinstein About-Face on Civil Liberties

Update: “Lawmakers Cave to FBI in Patriot Act Debate” in Wired.com.

During a Senate Judiciary Committee hearing, Sen. Patrick Leahy, the committee chairman, and Sen. Dianne Feinstein (D-California) introduced last-minute changes (.pdf) that would strip away some of the privacy protections Leahy had espoused just the week before. The Vermont Democrat said his own, original proposal of last week could jeopardize ongoing terror investigations.

… The Leahy-Feinstein amendment, which is likely to be adopted by the committee and sent to the full Senate next week, does not require the government show a connection between the items sought under a Section 215 warrant and a suspected terrorist or spy.

Read the full article.

The PATRIOT Act in 2009: A Resource Guide

Since the passage of the original PATRIOT Act in 2001 and its revision in 2006, much national debate has centered on the legislation’s threat to privacy, intellectual freedom, and implicit sanction of pervasive racial profiling. As important sections of the PATRIOT Act are scheduled to sunset in December 2009, there is renewed opportunity to challenge unjust government spying on our communities. This guide offers resources to help civic and community leaders find both background and up-to-date information on the reauthorization debate.

What’s included in the guide:

HISTORY & BACKGROUND

• The PATRIOT Act Itself
• Treatises on the Law
• Helpful Articles
• Oversight & Watchdog Reports
• Prior Cases

STAYING CURRENT

• Pending Bills to Reform
• Outstanding Cases
• Useful Websites for Staying Current

Download the 2009 Patriot Act Resource Guide (PDF)
Last updated September 18, 2009 by A. Sonnie

Expanding the Definition of ‘Justice’ in the PATRIOT Act Debates

Today, the Senate Judiciary Committee is holding hearings on the reauthorization of the USA PATRIOT Act. In the coming months the national debate about the PATRIOT Act will heat up once again. Three controversial sections of the Act are scheduled to sunset December 31, 2009. These are Sections 215 and 206 along with the “lone wolf” provision of the Intelligence Reform and Terrorism Prevention Act (Sec. 6001). The reauthorization process also presents new opportunities to address FBI rampant use of National Security Letters.*

Rep. Lamar Smith (TX) has already proposed legislation (HR 1467, Safe and Secure America Act) to extend certain sections, as they are currently written, with no reauthorization period for 10 years. Just last Thursday, Sens. Russ Feingold (WI) and Richard Durbin (IL) announced the Judicious Use of Surveillance Tools In Counterterrorism Efforts (JUSTICE) Act proposing new reforms to both the PATRIOT Act and the FISA Amendments Act. Yet, still, the Obama Administration supports reauthorizing the Act without any added safeguards.

In 2009, the whole of the progressive community must take coordinated action to reverse the PATRIOT Act and reinvigorate public conversation. The debate is currently framed by those who favor extending these controversial sections versus those who seek greater judicial and congressional oversight and more narrowly tailored spying. Given this context, progressive activists and librarians may decide to support civil liberties advocates, such as the ACLU and the American Library Association, in achieving the safeguards proposed by the JUSTICE Act. But, we must do so mindfully while considering the limits of those reforms.

Much of the current debate relies on constitutional arguments about the First and Fourth Amendments. This makes sense in the courts where the judiciary is only obligated to consider interpretations of the Bill of Rights. But this is not the standard on which we should base our mobilizing. More is at stake than free speech and privacy. As librarian Emily Drabinski wrote during the last reauthorization period:

“There are … fundamental limits to a strategy of resistance that is essentially reactive and narrow in focus. While librarians respond quickly and effectively to challenges posed by the Patriot Act, we have little in the way of sustained resistance to systemic forces that undermine information equity and access in less visible but more fundamental ways” (2006).

This means, fundamentally, we must address the fact that the PATRIOT Act was born in the context of neoliberalism. Its foundation was laid long before September 11, 2001. So, as we consider a shared platform for public education, grassroots actions and Washington lobbying efforts, activists and progressive librarians should frame our concerns and solutions within the frameworks of human rights and global justice. This requires some deeper vision and deeper collaboration than we have attempted.

To start, a global justice vision of intellectual freedom has at its heart a practice of active solidarity with the communities (both domestic and international) most impacted by the War on Terror, including immigrants to the U.S. regardless of their citizenship status. Our demands must include an end to racial profiling and directly challenge attacks on dissent and political speech — such attacks were recently embodied by “homegrown terrorism” legislation (H.R.1955, S.1959, 110th), which passed the House by a vote of 404–6. The bill never became law, but we can expect to see similar legislation again.

A global justice vision of intellectual freedom draws connections between privacy erosion, the growing prison system, preemptive wars and the repression of global social movements. It has at its core a commitment to the abolition of torture, indefinite detainment, secret wiretaps and other forms of government surveillance. It means overturning the PATRIOT Act, not simply reforming it. We must not lend truth to the idea that safety and human rights are at odds.

Further, the library profession, in particular, needs to achieve broader coalition than we have in the past. Section 215 (dubbed “the library provision”) is a threat to more than just library patron privacy. While the library community mobilized quickly to challenge Section 215 and succeeded in winning important changes during the last reauthorization, the revisions do not go far enough. Warrants issued under Section 215 remain a danger to community organizing groups, charities, service providers, international aid organizations and, especially, groups working with communities of color and immigrants. Section 215’s expiration provides a critical opportunity for libraries to work in coalition with other impacted groups.

What do I propose? By joining with public interest, human rights, media reform, racial justice and grassroots global justice groups, the library community might help bring these policies into greater focus. At least one example in the right direction includes the joint proposals made by contributors to the document Liberty and Security: Recommendations for the Next Administration and Congress. Their collaborative effort to address broad information policy issues is an example to follow. I hope to post more community-based examples to this blog as the reauthorization debate gains momentum.

The 111^th Congress will make a number of important decisions over the new few months. The level of heat in those debates should be determined by the strength and coordination of our local-to-national organizing. With December 31 just around the corner, it’s time to light the match.

*NOTE: According to DOJ’s Office of the Inspector General, the FBI issued 192,499 National Security Letter requests between 2003-2006 alone. All but 3 of these NSL recipients are unknown because PATRIOT Act § 505 stipulates nondisclosure, or a gag order. We do know that San Francisco’s Internet Archive (IA) received one of these NSLs. The FBI ordered IA to turn over transactional records including the name, address, email headers, length of service, and activity logs for specific users. IA fought the request and gag in court. Details came to light in mid-2008. We should not miss the opportunity to build on the momentum of well-publicized NSL abuse.

Recommended Reading and References

Drabinski, E. (2006, Winter). Librarians and the Patriot Act. Radical Teacher. Retrieved from, http://findarticles.com/p/articles/mi_m0JVP/is_77/ai_n27098778/

Gorham-Oscilowski, U., & Jaeger, P. T. (2008). National Security Letters, the USA PATRIOT Act, and the Constitution: The tensions between national security and civil rights. Government Information Quarterly, 25(4), 625-644.

Mart, S. N. (2008, March 12). The chains of the Constitution and legal process in the library: A post-Patriot Reauthorization Act assessment. [Unpublished working paper]. Retrieved November 25, 2008, from Social Science Research Network at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1105448. UPDATED VERSION AVAILABLE: 33 OKLA. CITY U. L. REV. 435 (2008).

Office of the Inspector General. (2007a, March). A Review of the Federal Bureau of Investigation’s Use of National Security Letters. [NSL Audit Report]. United States Department of Justice. Retrieved November 28, 2008, from http://www.usdoj.gov/oig/special/s0703b/final.pdf.

Office of the Inspector General. (2007b, March). A Review of the Federal Bureau of Investigation’s Use of Section 215 Orders for Business Records. [Section 215 Audit Report]. United States Department of Justice. Retrieved November 28, 2008, from http://www.usdoj.gov/oig/special/s0703a/final.pdf

Legislation to Watch: H.R. 1476 and 1800

Last month, two important pieces of legislation were proposed in the House.

• The Safe and Secure America Act, H.R. 1467, was introduced on March 12, 2009 by Sen. Lamar Smith (R-TX). The bill proposes a 10-year extension on “roving” wiretap powers and government access to library patron records. These provisions of the USA PATRIOT Act are scheduled to sunset this December. Rather than revise the constitutionally questionable sections, this bill would extend them (and the much contested FISA Amendments) until December 31, 2019. Stay up to date: Track H.R. 1467 here.

• The National Security Letters Reform Act of 2009, H.R. 1800, was introduced March 30, 2009, by Rep. Jerrold Nadler. The bill raises the standard needed for the FBI to obtain National Security Letters, and stipulates that NSLs must not be used to spy on U.S. residents based solely on First Amendment activities. See ACLU “Legislation Introduced To Curtail Patriot Act Abuse” (3/30/09), and stay up to date: Track H.R. 1800 here.

Eric Holder Supports Warrantless Wiretaps, Defends PATRIOT Act

In yesterday’s hearing, attorney general nominee Eric Holder made it clear he intends to reauthorize the PATRIOT Act and reiterated his support for FISA’s Protect American Act, which permits warrantless wiretapping.

Under Eric Holder, ‘War on Terror’ Would Still Define the DOJ

Alternet, By Liliana Segura, January 16, 2009

Excerpt: …Holder’s responses to the question of warrantless wiretapping gave even less to be optimistic about. “There are certain things that a president has the constitutional right that the legislative branch cannot impinge upon,” Mr. Holder said, stressing that wiretapping had proven to be a critical intelligence tool. Like Obama, he said he supported the immunity provisions for telecoms as provided for by the Protect America Act of 2007….

Coincidentally, Eric Holder’s confirmation hearing came on the same day that a federal intelligence court released an unprecedented ruling — made last August — that validated the Protect America Act. As Eric Lichtblau wrote in the New York Times: “the decision marks the first time since the disclosure of the National Security Agency’s warrantless eavesdropping program three years ago that an appellate court has addressed the constitutionality of the federal government’s wiretapping powers. In validating the government’s wide authority to collect foreign intelligence, it may offer legal credence to the Bush administration’s repeated assertions that the president has the power to act without specific court approval in ordering national security eavesdropping that may involve Americans.”