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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.

******
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