Booksellers Achieve a Measure of Success With Revised Patriot Act

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Since 2002, ABA Board member Linda Ramsdell of Galaxy Bookshop in Hardwick, Vermont, has been instrumental in rallying booksellers and librarians in the effort to amend Section 215 of the USA Patriot Act. With the House and Senate voting this past week to reauthorize a revised USA Patriot Act, here, Ramsdell discusses how booksellers' and librarians' efforts in the battle to amend 215 achieved a measure of success and clearly shows that politics is anything but a spectator sport.

By Linda Ramsdell

Politics is not a spectator sport.

I first heard these words spoken by my representative in Congress, a champion for reader privacy and the First Amendment, Bernie Sanders (I-VT). In the three years since the fight to restore reader privacy to Section 215 of the Patriot Act began, booksellers have been anything but spectators.

At each critical juncture of the campaign, booksellers and librarians have called and visited their representatives in Congress and have written letters to Washington and to the editors of newspapers. In bookstores and libraries all over America, booksellers have collected signatures on petitions in support of reader privacy. Because of these petitions, booksellers have conducted thousands of conversations, in many cases raising the awareness of customers who did not know the threats that Section 215 of the Patriot Act posed to the privacy of their reading decisions, making them aware that, in effect, someone in the government could be secretly looking over their shoulder. Throughout the fight, booksellers advocated for the merits of the Campaign for Reader Privacy and updated customers on the status of the campaign.

Three years is a long time to sustain a fight. In a world where shocking, tragic, frightening, and discouraging headlines compete for our attention on a minute-by-minute basis, it is a challenge to remain focused on any one issue. In our fight to amend Section 215 of the Patriot Act, we have been inspired by the leadership of Congressman Sanders, the first to introduce legislation challenging Section 215. He has worked tirelessly to build bi-partisan support for reader privacy, and his leadership on this issue has been exemplary. We also have a great ally in Sen. Russell Feingold (D-WI), the lone Senator to vote against the most recent deal to reauthorize the Patriot Act.

This week, the reauthorized Patriot Act has been passed by Congress. Clearly, it is not the legislation we hoped to see approved, but, I believe, we have achieved a measure of success worth celebrating. As anyone who spent any time watching the Winter Olympics will recognize, even the most heroic efforts do not always result in a gold medal.

While acknowledging that the proposed legislation falls short of our ultimate goal, it is worth stopping for a moment to imagine what might have happened without our efforts to amend Section 215. Simply stated, it is unlikely that anything at all would have changed. Booksellers and librarians would still have absolutely no recourse when confronted with an order to turn over business records of a customer's purchases in the form of a FISA Court request or a National Security Letter. A mandated gag order would have remained unchallenged, and unchanged, and the FBI would have continued to use Section 215 with no oversight. The changes we have successfully fought for include:

  1. Requests for Section 215 orders must be approved at high level. Only one of three top FBI officials may authorize a request for the records of a bookstore or library under Section 215 -- the director, deputy director, or the executive assistant director of national security. Such high level clearance was not necessary before.

  2. The FBI must present a statement of facts supporting the relevance of their request. The FBI is required to present a FISA judge with a statement of facts supporting the relevance of a request for a Section 215 order. The Patriot Act did not require this. Potentially, this requirement gives the judge greater discretion in deciding whether to approve the order.

  3. Recipients of Section 215 orders have the right to consult an attorney. Recipients of Section 215 orders are explicitly authorized to consult an attorney. It was unclear in the Patriot Act whether calling a lawyer violated the prohibition against revealing a Section 215 order to others.

  4. Booksellers and librarians have a right to challenge a Section 215 order. Recipients of Section 215 orders can challenge them in the FISA Court. If the challenge is denied, it can be appealed to the FISA Court of Review. Plaintiffs who fail in the Court of Review can ask the U.S. Supreme Court to intervene.

  5. Booksellers and librarians can challenge gag orders after one year. A year after receiving a Section 215 order, a recipient can go to court to request that the gag order be lifted. However, the government can maintain the gag by asserting that it is necessary to protect national security.

  6. Recipients of National Security Letters (NSLs) may challenge them in court. The FBI uses NSLs to obtain records related to the use of Internet terminals and other "communication service provider records." Booksellers and other recipients may challenge both the order and any gag that it imposes.

  7. The FBI is subject to increased Congressional oversight. The Justice Department must report annually the number of bookstore and library searches under Section 215. Under the original Patriot Act, it was only required to provide the total number of Section 215 orders.

  8. Section 215 "sunsets" in 2009. Unless re-authorized, Section 215 will expire on Dec. 31, 2009. The Bush administration wanted to make Section 215 permanent.

  9. The Justice Department to conduct audit of Section 215 orders. The Inspector General of the Justice Department is required to perform a "comprehensive" audit of the "effectiveness and use, including improper or illegal use, of the investigative authority" provided to the FBI under FISA, including Section 215. The audit will begin with the year 2002.

The Campaign for Reader Privacy -- booksellers, librarians, writers, and publishers -- and a few devoted and determined representatives in Congress have achieved significant results. Clearly, the fight will continue, and our allies in Washington, such as Rep. Sanders and Sen. Feingold, are standing firm. But we should not forget that our hard work helped change the entire debate surrounding the Patriot Act and won us some concessions in a political climate and at a time where any restoration of civil liberties is a notable achievement.

But, as Bernie would remind us, politics is not a spectator sport. We will need to continue our vigilance to monitor how our government uses the Patriot Act, and to ensure that our readers' and our fellow citizens' civil liberties are not being violated.