Privacy, National Security Letters & FISA Reform Issues

Protecting patron privacy and the confidentiality of library records are deep and longstanding principles of librarianship and guide ALA’s legislative activities on privacy, surveillance and other related issues. Based on these principles, ALA has worked on issues from reform of national security letter (NSL) laws and the Foreign Intelligence Surveillance Act (FISA) to repeal of the REAL I.D. Act.  

National Security Letter (NSL) Reform Legislation
The Senate Judiciary Committee will soon consider issues relating to National Security Letters (NSLs). The bi-partisan NSL Reform Act (S. 2088) includes many beneficial reforms including limiting the reach of NSLs by allowing only less sensitive personal information to be made available under this authority. Other existing authorities could still be used to obtain the more sensitive information that would no longer be available with an NSL. The bill would require the government to determine that records sought with an NSL relate to someone who is connected to terrorism or espionage and would require the Attorney General to issue minimization procedures for information obtained through NSLs. 

It would also enhance oversight by requiring additional reporting to Congress and make reasonable changes to the gag rules, requiring a gag to be narrowly tailored and limiting it to 30 days, extendable by a court. The bill would also tighten standards for court-issued orders under Section 215 of the USA PATRIOT Act (the “library records” provision) by requiring the government to show that the records sought relate to a suspected terrorist or spy, or to someone directly linked to such a person. 
 
In the House, Rep. Jerry Nadler (D-NY), with Reps. Jeff Flake (R-AZ), William Delahunt (D-MA) and Ron Paul (R-TX), introduced the National Security Letters Reform Act of 2007 (H.R. 3189). This bipartisan bill, still in committee, would provide crucial checks against the unprecedented and dangerous NSL authority expanded by the PATRIOT Act. This bill would give an NSL recipient the right to challenge the letter and its nondisclosure requirement, while placing a time limit on the NSL gag order and allow for court approved extensions.

BACKGROUND: The PATRIOT Act and Intelligence Authorization Act of FY 2004 drastically expanded the FBI's authority to obtain the business and personal records of Americans by issuing National Security Letters (NSLs). NSLs, which do not require prior judicial approval, can be used to obtain a wide range of documents based upon vague claims that the information is merely "relevant" to a terrorism investigation. The FBI can keep records indefinitely that it acquires via an NSL, even when it concludes that the subject of those records is innocent of any crime and is not of intelligence interest.  While the FBI needs prompt access to some of the types of information currently acquired under NSLs, the current method of self-policing simply does not work. Reports issued by the Office of the Inspector General of the Department of Justice in March of both 2007 and 2008 document the drastic expansion of the use of NSLs and their subsequent abuse, making reform all the more important.

Foreign Intelligence Surveillance Act (FISA) Reform Legislation
In August 2007, Congress enacted the Protect America Act very quickly as summer recess began. The Protect Act expired on February 16 of this year.  In March, the House passed a new bill incorporating parts of the Senate’s FISA Amendments Act of 2007 (S. 2248), and the House’s original RESTORE Act (H.R. 3773).  In recent months, ALA has signed on to numerous letters with organizations such as the Center for National Security Studies (CNSS) and the Center for Democracy and Technology (CDT), as the various iterations of these bills have proceeded through Congress. 

The “H.R. 3773 substitute bill” is substantially better than the Protect Act passed in August or the bill passed by the Senate. The “substitute” includes reporting requirements that will ensure that Congress obtains access to the information needed for public and Congressional consideration of what permanent amendments should ultimately be made to FISA. While the bill would authorize the surveillance of Americans’ international communications without a warrant (in some circumstances where the Fourth Amendment requires a warrant), it does contain important protections against such unconstitutional surveillance.  Such appropriate protections include: a) accountability for illegal surveillance by the Administration that also guarantees future oversight; b) a December ‘09 sunset so that these powers will be reviewed in the new Administration; c) creation of a commission to investigate & report about warrantless surveillance; d) stronger judicial oversight; and f) requiring probable cause to target Americans who are overseas.

BACKGROUND: FISA, enacted in 1978 and later amended by the USA PATRIOT Act, is at the center of the controversy concerning domestic spying. FISA passed after reports of massive domestic spying abuses by the FBI, CIA and NSA in the 1970s. It provides special procedures for conducting electronic surveillance of telephones, etc., for foreign intelligence purposes including setting up the FISA Court to authorize such surveillance. The FISA Act provides for surveillance of American citizens and others for whom the court determines that there is probable cause that they are “agents of a foreign power” as defined in the statute. 

 (The above reports are substantially based on information from CNSS and CDT.)

REAL ID Act  and Related Issues
ALA opposed the REAL ID Act (P.L. 109-13) in 2005 and supports current efforts for its repeal. The Act creates a de facto national identification (ID) card by mandating standardized machine-readable driver’s licenses in all states. The library community is concerned because such state driver’s licenses are often used to apply for library cards. This would increase the opportunity to access and link multiple databases, including library use records, threatening privacy rights and confidentiality with respect to information sought. 

Most critics agree that the REAL ID Act creates a national ID system lacking adequate privacy safeguards and puts the burden of this system on states’ driver’s license agencies to fund (cost estimates exceed 100 times what Congress initially projected) and manage. Enactment of REAL ID would violate many states’ privacy laws; 17 states have passed (and 20 have partially-passed or introduced) legislation rejecting REAL ID. ALA passed a resolution stating its concerns about the move to standardized machine-readable driver's licenses.

The ALA encourages Congress to repeal the REAL ID and support the REAL ID Repeal and Identification Security Enhancement Act (H.R. 1117), and the Identification and Security Enhancement Act (S.717).