House Judiciary Committee Deals Blow to Reader Privacy

July 14, 2005

On Wednesday, July 13, the Campaign for Reader Privacy -- which is comprised of the American Booksellers Association, PEN American Center, the American Library Association, and the Association of American Publishers -- criticized the House Judiciary Committee regarding its failure to adopt Rep. Jerrold Nadler's (D-NY) amendment to a bill reauthorizing the USA Patriot Act. The organizations said that Nadler's amendment would have restored crucial safeguards for the privacy of library and bookstore records that were eliminated by Section 215 of the Act. However, disregarding the 238 - 187 vote in the House on June 15 to cut off funds for bookstore and library searches under the provision, the Committee voted against the amendment.

"We are disappointed that the House Judiciary Committee has ignored the will of the substantial majority of House members who voted last month to restore the safeguards for reader privacy," said ABA COO Oren Teicher. "We will continue to push for further safeguards on the House floor and in the Senate."

Though the reauthorization bill (H.R. 3199) would permit libraries, booksellers, and other recipients of Section 215 orders to challenge their legality, it does not guarantee the recipient the opportunity to appear before a judge. In addition, in the absence of a more stringent standard than "relevance," the judge would have no grounds to limit the overwhelming majority of orders.

The Judiciary Committee, which is hoping to bring legislation before the full House next week, did adopt an amendment to extend the sunset provision on Section 215 for 10 years.

In a press release, the Campaign for Reader Privacy said it was still hopeful that House members will honor commitments made during the markup to offer language strengthening the standard for a Section 215 on the floor.

At present, Section 215 authorizes the FBI to obtain the records secretly without demonstrating that there is a reason to believe the person whose records are sought is a terrorist or a spy. The FBI need only assert that the records are "relevant" to clandestine intelligence activities or to an ongoing investigation to protect against international terrorism. The user of libraries and bookstores whose records are seized in such a search may have no connection to intelligence activities at all. H.R. 3199 also leaves unchanged the provision of the Patriot Act that imposes a permanent gag on booksellers and librarians, forbidding them to reveal that they have received a Section 215 order.

The Campaign for Reader Privacy has endorsed two bills that restore safeguards for reader privacy: the Freedom to Read Protection Act (H.R. 1157), which exempts bookstores and libraries form Section 215; and the Security and Freedom Enhancement (SAFE) Act (S. 737), which requires the FBI to have "specific and articulable facts" that show that the person it is targeting is a foreign agent or terrorist before it may seek a search order from the secret FISA Court.

Also meeting yesterday to discuss the Patriot Act were the House Permanent Select Committee on Intelligence and the Senate Judiciary Committee.

At the Senate Judiciary Committee meeting, two members, Arlen Spector (R-PA), the committee chairman, and Dianne Feinstein (D-CA), introduced legislation that imposed restrictions on "some of the more controversial elements" of the Patriot Act, the New York Times reported. The bill would require Congress to renew Section 215 in 2009, among other things, the Times noted.

On July 12, a wide range of book industry groups and civil liberty advocates -- including ABA, the American Civil Liberties Union, and the American Conservative Union -- wrote Spector strongly urging the passage of the SAFE Act. (To read the letter in full and for a full listing of signatories, click here.)

In the letter, the groups wrote:

"While we want the federal government to do all it can to protect our nation from future terrorist attacks, we also do not wish our basic constitutional freedoms to be eroded by the increasing size, power, and intrusive authority of the federal government.

"We applaud primary sponsors Senators Larry Craig (R-ID), Richard Durbin (D-IL), John Sununu (R-NH) and Russell Feingold (D-WI) for their commitment to the Constitution. Their support highlights the fact that fighting for both our nation's security and our freedom transcends ideology or partisanship. In announcing the introduction of the SAFE Act earlier this year, Senator Craig stated, 'It is possible to fight terrorism without eroding the Constitution and the rights of Americans, and our bill is designed to restore that critical balance in the aggressive enforcement of our laws. However, before the PATRIOT Act is reauthorized later this year, a few small, but important, changes must be made.'"

Meanwhile, the House Permanent Select Committee on Intelligence approved reauthorization of the Patriot Act, but adopted an amendment that would "place a five-year limit on a provision of the law that enables investigators to eavesdrop on suspected 'lone wolf' terrorists," the Times reported, and "toughened rules on roving wiretaps."

However, ACLU noted that several other amendments that would have corrected "some of the problems with the Act" were defeated, one of which would have restricted the use of Section 215 search orders to obtain library and bookstore records. Moreover, Rep. Jane Harman's (D-CA) amendment, which incorporated many of the corrections provided by the SAFE Act, was defeated, ACLU reported. --David Grogan

(To learn more about the Campaign for Reader Privacy and Section 215 of the Patriot Act, go to www.bookweb.org/read/7679).

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