ABFE Update: New Hope for PATRIOT Act Reform

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The bell has rung for the next round of the 13-year fight to reform the USA Patriot Act.

In one corner is Senate Majority Leader Mitch McConnell (R-KY), who has introduced a bill that re-authorizes the PATRIOT Act for another five years without any changes that address the abuses of government surveillance authority that were revealed by whistleblower Edward Snowden.

In the other corner are Senator Patrick Leahy (D-VT) and the sponsors of the “Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-collection and Online Monitoring Act” (USA FREEDOM Act). The FREEDOM Act would make the most significant changes in the PATRIOT Act since its passage in the weeks after the 9/11 attacks.

Actually, this is a rematch. The FREEDOM Act was introduced in the last Congress. It passed the House but never reached a final vote in the Senate, falling two votes short of the 60 needed to end debate. A new FREEDOM Act was introduced this week.

This battle will not be resolved in a single night, but it will probably be over soon. The expiring sections of the PATRIOT Act must be re-authorized by June 1. Unless Congress adopts a temporary extension, it must act by May 22, when it is scheduled to adjourn for the Memorial Day recess.

The reformers won the first round on April 30, when the House Judiciary Committee approved the FREEDOM Act by a vote of 25-2.

Booksellers have been advocating changes in the PATRIOT Act ever since we learned that Section 215 of the law allows the government to secretly demand all records that are “relevant” to a terrorism investigation, including bookstore and library records. We feared that this power was so broad that it would be abused, despite the reassurances of the sponsors of the legislation that this power would be exercised prudently. The materials leaked by Snowden confirmed our fear, detailing how the federal government was routinely collecting information about the telephone calls of millions of Americans.

The new version of the FREEDOM Act does not include all of the privacy safeguards in the original legislation, which limited the government to searches of the records of suspected terrorists. However, it significantly reduces the danger that the government will conduct overbroad fishing expeditions of bookstore and library records.

One of our concerns has been that the government might use Section 215 to demand that a bookstore either turn over all its customer records or produce a list of people who had purchased a particular title. In 2004, the FBI tried to force a library in rural Washington State to identify patrons who had checked out a biography of Osama bin Laden. The library objected and the FBI withdrew the subpoena. If the FBI had used a Section 215 order instead of a subpoena, the library might have been forced to comply, without the recourse of making public the demand for records.

The FREEDOM Act bans the “bulk collection” of information by requiring the government to provide information identifying a specific person, account, address or other “specific selection term” (SST) when it applies for the authority to search under Section 215. The bill makes clear that the purpose of the SST is “to limit, to the greatest extent reasonably practicable, the scope of tangible things sought.”

The USA FREEDOM Act also includes provisions that would make it easier to monitor whether the government is abusing its authority. The Foreign Intelligence Surveillance Court (FISC), which secretly reviews requests for Section 215 orders, would be required to declassify its opinions whenever possible and to publish an unclassified summary when it can’t. A panel of friends of the court would be appointed to help the FISC weigh the privacy implications of its decisions. Private companies would be permitted to release more information about the secret orders they receive from the government.

The American Booksellers for Free Expression (ABFE) is strongly supporting the FREEDOM Act. We will communicate with booksellers soon about how they can help.