The FBI Shouldn't Be Reading Over Our Shoulders

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The following op-ed piece was written by ABA COO Oren Teicher and appeared in the August 9 edition of Newsday.

By Oren J. Teicher

We thought we had won.

Last month, a majority of the members of the House of Representatives voted to deny funding for FBI searches of bookstore and library records under Section 215 of the USA Patriot Act. After a two-year fight, it appeared we had prevailed by a vote of 219-201 in restoring the protections for the privacy of bookstore customers and library patrons that were eliminated by the Patriot Act.

We were cheering. Booksellers and librarians have long fought to protect the confidentiality of our sales and borrowing records because we know that people will not feel free to request the books they want if they fear that the government can easily find out what they are reading. We were celebrating because the House had finally barred the FBI from using the Patriot Act to investigate someone's reading habits without any evidence that the person is suspected of terrorist activity or even of committing a crime. Congress was defending our right to read freely.

Then, strange things began to happen. As we watched on C-SPAN, the vote tally showed that the total in favor was slipping: 218, 217, 216.... At the same time, the vote against the Freedom to Read Amendment was growing: 202, 203, 204....

We held our breath, waiting for the 15 minutes set aside for the vote to expire. But the deadline passed, and the votes continued to change. Members of Congress were shouting at the House leaders to close the vote, but it dragged on for another 23 minutes. When the gavel finally fell, the vote was tied 210 to 210 and the Freedom to Read Amendment failed.

The explanation for this mysterious reversal begins with the fact that the leadership of the House was surprised by the strength of the support for the Freedom to Read Amendment, which was introduced by Rep. Bernie Sanders (I-VT). President George W. Bush had been campaigning hard for the re-authorization of Section 215 and other controversial provisions of the Patriot Act that are due to expire next year. Shortly before the House vote, the White House announced that it would veto the appropriations bill that funds the Commerce, State, and Justice Departments if it included the Freedom to Read Amendment.

Such an unequivocal message from the party's leader should have been enough to keep the Republican House members in line. But 28 defied their president and voted for the amendment. So, in an unusual maneuver, House leaders basically stopped the clock and prolonged the vote until they had pressed enough dissident Republicans to change their minds.

Of course, it was painful to be so close to victory. But the vote on the Freedom to Read Amendment actually shows that support for amending the Patriot Act is growing. In the aftermath of 9/11, after the act was rushed through Congress virtually unchallenged, free expression groups were unable to attract attention to the problems with the new law, including Section 215, which gives the FBI the right to look at the book purchase or borrowing records of any American without showing any evidence that the person is engaged in terrorist activity.

Today, there are bills in both houses of Congress that limit the power of the FBI under Section 215. In the House, the Freedom to Read Protection Act has 150 co-sponsors. The Senate bill, the Security and Freedom Ensured Act, has 19 co-sponsors, including Sen. John Kerry.

The realization that some sections of the Patriot Act threaten civil liberties began to grow when booksellers and librarians started protesting over Section 215. Concerned that our customers and patrons would not feel free to read what they want if the government can easily get their records, the American Booksellers Association and the American Library Association joined PEN American Center in launching a Campaign for Reader Privacy that is circulating a petition in bookstores, libraries, and on its Web site to gather signatures in time for next year's debate on the future of Section 215.

We recognize that the government can subpoena bookstore and library records of a suspected terrorist. What we object to is the legislative overkill in the Patriot Act that enables the government to obtain the records of people who are not even suspected of criminal activity, much less terrorism -- while denying the bookstore's and library's right to rudimentary due process.

Our "defeat" on July 8 shows that Congress is getting the message.

Reprinted with permission from Newsday, Monday, August 9, 2004.