Courtesy of the ALA Washington Office’s District Dispatch blog:
It was mid-summer when Senator Patrick Leahy (D-VT), the outgoing Chairman of the Senate Judiciary Committee, answered the House of Representative’s passage of an unacceptably weak version of the USA FREEDOM Act by introducing S. 2685, a strong, bipartisan bill of his own. Well, it’s taken until beyond Veterans Day, strong lobbying by civil liberties groups and tech companies, and a tough stand by Senate Majority Leader Harry Reid, but Leahy’s bill and real National Security Agency (NSA) reform may finally get an up or down vote in the just-opened “lame duck” session of the U.S. Senate. That result is very much up in the air, however, as this article goes to press.
Now is the time for librarians and others on the front lines of fighting for privacy and civil liberties to heed ALA President Courtney Young’s September call to “Advocate. Today.” And we do mean today. Here’s the situation:
Thanks to Majority Leader Reid, Senators will cast a key procedural vote late on Tuesday afternoon that is, in effect, “do or die” for proponents of meaningful NSA reform in the current Congress. If Senators Reid and Leahy, and all of us, can’t muster 60 votes on Tuesday night just to bring S. 2685 to the floor, then the overwhelming odds are—in light of the last election’s results—that another bill as good at reforming the USA PATRIOT Act as Senator Leahy’s won’t have a prayer of passage for many, many years.
Even if reform proponents prevail on Tuesday, however, our best intelligence is that some Senators will offer amendments intended to neuter or at least seriously weaken the civil liberties protections provided by Senator Leahy’s bill. Other Senators will try to strengthen the bill but face a steep uphill battle to succeed.
Soooooo….. now is the time for all good librarians (and everyone else) to come to the aid of Sens. Leahy and Reid, and their country. Acting now is critical . . . and it’s easy. Just click here to go to ALA’s Legislative Action Center. Once there, follow the user-friendly prompts to quickly find and send an e-mail to both of your U.S. Senators (well, okay, their staffs but they’ll get the message loud and clear) and to your Representative in the House. Literally a line or two is all you, and the USA FREEDOM Act, need. Tell ‘em:
- The NSA’s telephone records “dragnet,” and “gag orders” imposed by the FBI without a judge’s approval, under the USA PATRIOT Act must end;
- Bring Sen. Leahy’s USA FREEDOM Act to the floor of the Senate now; and
- Pass it without any amendments that make it’s civil liberties protections weaker (but expanding them would be just fine) before this Congress ends!
Just as in the last election, in which so many races were decided by razor thin margins, your e-mail “vote” could be the difference between finally reforming the USA PATRIOT Act. . . or not. With the key vote on Tuesday night, there’s no time to lose. As President Young wrote: “Advocate. Today.”
by Nancy Kranich
Rutgers School of Communication and Information
Past President, American Library Association
Are librarians hysterical about protecting user privacy, as Attorney General John Ashcroft contended in 2003? That was the question asked when LIS students at Rutgers University heard from two librarians on the front lines defending and promoting intellectual freedom since the September 11th terrorist attacks in 2001. The colloquium entitled Libraries, Privacy, and National Security featured George Christian, the plaintiff in John Doe v. Gonzales who was served a National Security Letter (NSL) in 2005 that demanded patron records from the Library Connection in Connecticut, and Patrice McDermott, Executive Director of the coalition OpenTheGovernment.org, an organization that shines a light on surveillance transparency.
Both colloquium speakers were instrumental in changing the discourse and moving public opinion and policy toward more openness and privacy protection. They not only shared their stories, but addressed the central question: where do you draw the line in a democratic society between safety and freedom?
Attendees learned first hand from a librarian who just said NO to an FBI fishing expedition that demanded records about thousands of innocent readers using his busy library system. They listened to another librarian, a policy negotiator in Washington, who explained why librarians and library users should care about national security issues. Stated one student, “I thought it was interesting that both Christian and McDermott brought up privacy and security as ‘teachable moments.’ Christian discussed how librarians may assume the role of educating a library’s constituents about threats to privacy and Constitutional rights. McDermott referred to the NSA leaks, which created a new public awareness about these issues.”
Ever since the 9-11 attacks, librarians have raised concerns about policy makers’ reactions to the threats. Their concerns initially focused on the USA PATRIOT Act, passed by Congress with virtually no debate. That law, which includes several troubling provisions such as Section 215, grants unprecedented authority to law enforcement agencies to obtain search warrants from a secret court for business records (including educational, library, and bookstore records) without any actual proof or even reasonable suspicion of terrorist activity. Although the word library is not mentioned, this section is often referred to as the “library provision” thanks to the outcry over the possibility of library surveillance. That provision includes a gag order that requires any person or institution served with a warrant to keep secret what transpired. A similar provision, Section 505, permits the use of NSLs to force the instantaneous production of information about targets of investigations without any court order.
What’s the problem with these provisions? First and foremost, they license law enforcement officials to peer into Americans’ most private reading, research, and communications—rights granted under both the 1st Amendment and 4th amendment of the U.S. Constitution. They also sweep aside constitutional checks and balances, eliminate probable cause from terrorist investigations, increase potential for abuse, and break down barriers between criminal and intelligence gathering. In addition, they override existing privacy and confidentiality laws, including those in 48 states protecting library records.
In the John Doe v. Gonzales case, Christian (aka John Doe) described the FBI’s fishing expedition that chilled inquiry by innocent library users in his northern Connecticut library system. Moreover, a gag order imposed on Christian and his colleagues kept them from speaking out when debate about renewal of the USA PATRIOT Act denied that search warrants were issued to libraries. One student responded to Christian’s story, stating he is “truly a hero in the eyes of the library world and should be a hero in the eyes of the public. George stood up for all of our privacy rights.”
For more than a decade, ALA has passed resolutions urging Congress to amend the USA PATRIOT Act and related measures, launched the Campaign for Reader Privacy, and joined with other civil liberties groups like OpenTheGovernment.org to advocate reform. Unfortunately, attempts to modify the law have not yet resulted in substantive changes, even though a series of Amendments in 2006 limited impact on libraries thanks to the John Doe case.
During the Bush Administration, Americans learned about a related measure, a warrantless wiretapping program–legalized by Congress in 2008–that expanded powers to monitor domestic communications and listen to international phone calls without specific reasons. Then, in June 2013, Edward Snowden released highly classified information exposing the National Security Agency’s secret bulk collection of metadata about emails and phone calls made by Americans and the tapping of phones of foreign leaders. These measures have finally prompted a reluctant Congress and outraged public to join the “hysterical” library community in calling for change. Commented one MLIS student, “If librarians were worried in 2005, the whistle-blowing of Edward Snowden should be a wake-up call.”
McDermott described changes under consideration by Congress. One, the USA Freedom Act that ALA and other coalition partners have endorsed, would limit surveillance inquiries to a foreign power or agent actually suspected of terrorist activities, require a court order to search for records in bulk data, and create a special privacy advocate for the FISA court.
One Rutgers student, hearing about these developments for the first time, declared, “George Christian taught us a lot last night, he taught us that what he did was not the ordinary and that we need to be cautious of this ever happening to us. He let us know that the only way to succeed is to be educated and prepared. Patrice McDermott did an excellent follow up by making us aware of how unsecure the world is and that it is up to us to protect our privacy.” Stated another, “This colloquium was an excellent reminder that privacy is still a right and is worth defending, both for ourselves and for our patrons.” A third claimed, “there is so much more to libraries and librarians than meets the eye,” followed by another who affirmed, “This is a field that is growing in its involvement and purpose every day, and I am so excited to be a part of this.”
Nancy Kranich teaches at the Rutgers School of Communication and Information. She is a Past President of ALA, and, as a former Chair of the ALA Intellectual Freedom Committee, spearheaded the drafting of the original 2005 edition of the ALA’s Privacy Toolkit.
A video recording of the Rutgers MLIS Colloquium, “Libraries, Privacy, and National Security,” April 23, 2014, is available online , along with background lectures about libraries, privacy and national security prepared by Nancy Kranich (links below):
Video Recording: Rutgers Colloquium: Libraries, Privacy, and National Security, April 23, 2014
Background: Introduction to Libraries and Privacy, Part 1
Background: Introduction to Libraries, National Security and Privacy, Part 2