Is Someone Reading Over Your Shoulder?
Campaign For Reader Privacy
Campaign for Reader Privacy News
printer friendly version
Restoring Safeguards for Reader Privacy Eliminated by the USAPatriot Act:
An Appeal to Congress by the Campaign for Reader Privacy; April 7, 2009

The Problem:

The USA Patriot Act eliminated crucial safeguards protecting the confidentiality of the records of bookstore customers and library patrons. It has undermined the confidence of American readers that they can purchase or borrow books or use a computer without subjecting themselves to government surveillance. It has created a chilling effect on their First Amendment rights.

Under Section 215, the “business records” provision, the FBI can seek an order from the Foreign Intelligence Surveillance (FISA) Court requiring a bookseller or librarian to turn over any records that are “relevant to” an investigation of international terrorism or foreign espionage, including the records of people who are not suspected of criminal conduct. Section 215 orders prohibit a bookseller or librarian from revealing that they have received a demand for records. Under the Patriot Act, bookstores and libraries that provide the public with access to the Internet are also subject to National Security Letters (NSLs). NSLs are orders that are issued by the FBI without judicial review. Like Section 215 orders, they can be used to obtain any records deemed “relevant” to a terrorism or espionage investigation and contain a gag provision. FBI Director Robert S. Mueller III recently told the Senate Judiciary Committee that the FISA Court had issued more than 220 Section 215 orders between 2004 and 2007.1 More than 190,000 NSLs were issued in the four-year period from 2003 through 2006, according to the Inspector General of the Department of Justice.2

We do not know whether a Section 215 order has been served on a bookstore or library, and the gag provision makes it impossible to gather this information. According to a report by the Inspector General, no order had been issued to a library prior to 2006. However, “…FBI field offices submitted requests to FBI Headquarters to seek to obtain information from a library on a few occasions…”3 While these requests were withdrawn before any application was filed with the FISA Court, Section 215 orders may have been issued after 2005. (In June 2004, the FBI issued a grand jury subpoena to a rural library district in western Washington in an effort to obtain a list of people who had borrowed a biography of terrorist leader Osama bin Laden. The subpoena was withdrawn after the library filed a motion to quash it.) There is similar uncertainty about how many times the FBI has used NSLs to gather information from bookstores and libraries, but two lawsuits have been filed in response to such requests. In August 2005, the FBI issued an NSL to a Connecticut library consortium in an effort to obtain the Internet records of one of its patrons. In November 2007, the FBI issued an NSL to Internet Archive, a digital library, seeking the name and address of one of its users as well as all transactional records pertaining to the user.

The recipients of the NSLs–four Connecticut librarians and Brewster Kahle of Internet Archive–challenged the orders in court, and both NSLs were subsequently withdrawn. Nevertheless, the Connecticut NSL had a deeply chilling effect on free speech. When the librarians challenged the NSL in court, they persuaded a judge to order the gag lifted. However, the government appealed, depriving the librarians of the opportunity to talk about their case during the debate over reauthorizing the Patriot Act. It wasn’t until six months after the reauthorization in 2006 that the Justice Department dropped its legal fight to maintain the gag and withdrew its demand for the records, freeing the librarians to talk. George Christian, one of the librarians, said finally being permitted to speak “is a little like being permitted to call the fire department only after a building has burned down.”4

Our primary concern since the passage of the Patriot Act has been that Section 215 orders and NSLs will be used to engage in fishing expeditions that violate the First Amendment right of Americans to seek information freely without fear of government scrutiny. A 2008 report by the Inspector General confirms that the FBI has requested at least one Section 215 order that apparently did just that. The FISA Court rejected the FBI’s request twice on the grounds that “the facts were too ‘thin’ and that this request implicated the target’s First Amendment rights.”5 The Inspector General’s investigation further revealed that after being rejected by the FISA Court, the FBI issued an NSL for the same information despite the fact that like Section 215 the NSL statute bars investigation based solely on First Amendment protected activity. According to the report, “The FBI General Counsel told the OIG [Office of the Inspector General] that she believed that it was appropriate to issue NSLs because she disagreed with the FISA Court...She stated that the FBI would have to close numerous investigations if it was not permitted to investigate individuals based on their contact with other subjects of FBI investigations.”6 The Inspector General criticized this conclusion. “…[W]e believe it was incumbent on the FBI...[to] reevaluate the investigation before seeking additional information...using NSLs.”7 The incident makes clear that the FBI has sought to use Section 215 to investigate First Amendment-protected activity, and that, thwarted by the Foreign Intelligence Surveillance Court, it has used an NSL for that purpose.

Attempts at Reform:
In 2004, the American Library Association, the American Booksellers Association, the Association of American Publishers, and PEN American Center launched the Campaign for Reader Privacy (CRP) to restore the safeguards for reader privacy that were eliminated by the USA Patriot Act. CRP conducted a national grassroots education and advocacy campaign through bookstores and libraries to amend Section 215 and the NSL provision, and its members joined several amicus curiae briefs supporting the legal challenge to NSLs. Efforts to reform Section 215 and the NSL provision produced some improvements, but key concerns remain unaddressed or unresolved.

Section 215
In the spring of 2004, CRP launched a petition campaign that collected more than 200,000 signatures in bookstores and libraries in support of legislation to correct Section 215, including the Freedom to Read Protection Act, introduced by Rep. Bernie Sanders (I-VT); 1the Library, Bookseller and Personal Records Privacy Act, introduced by Senators Russ Feingold (D-WI) and Dick Durbin (D-IL), and 1the Security and Freedom Enhancement (SAFE) Act introduced by Larry Craig (R-ID). In 2005, both the House and Senate indicated their support for adding safeguards for bookstore and library records. Some of these protections were incorporated in the bill re-authorizing the Patriot Act that was approved by Congress in early 2006, including the right to consult an attorney about a Patriot Act order, a limited right to challenge the order in court, and an annual accounting of the total number of bookstore and library searches under the Patriot Act. However, the bill lacked a key safeguard that would restrict searches to the records of people who are suspected of terrorism. As a result, the government may continue to search the records of anyone it considers "relevant" to a terrorism investigation, including people who are not suspected of criminal conduct.

Under the new law, FBI agents seeking a Section 215 order to search bookstore or library records must first obtain the permission of either the director or deputy director of the FBI or the Executive Assistant Director of National Security and must also present a statement of facts justifying the relevance of their request to a judge in the Foreign Intelligence Surveillance Court, the secret court established by the Foreign Intelligence Surveillance Act (FISA). Bookstores and libraries that receive a Section 215 order can consult an attorney and now have a right to challenge the orders in the FISA court. The “gag” order that prevents institutions from revealing they have received Section 215 orders remains in place, but it can now be challenged after one year. Finally, the law required the Inspector General of the Justice Department to conduct a review of the use of Section 215 since 2001 and report publicly whether any abuses have occurred.

Last year, the National Security Letters Reform Act was introduced in both Houses of Congress (S. 2088 and H.R. 3189, see below). Included in that legislation are provisions that would further amend and improve Section 215 as well.

NSLs
Legal challenges by recipients of National Security Letters have likewise led to some revisions to the Patriot Act. In September 2004, a U.S. District Court judge struck down the NSL statute in a case brought by an Internet service provider that had received an NSL. (The ACLU, which represented the ISP, is still barred by the NSL gag order from disclosing its client’s identity, even though the FBI withdrew the NSL more than a year and a half ago). Judge Victor Marrero ruled in that case that the FBI could not demand the records without a court review and that the permanent gag order violated the First Amendment.

The government appealed that decision, but Congress subsequently amended the NSL provision, giving recipients the right to challenge the orders in court and to seek to lift the gag provision after one year. Though these amendments were welcomed, they did not fully solve the problem of NSLs. The FBI has retained the right to search all relevant bookstores and library records.

The ACLU brought a new challenge to the amended provision in 2007, this time challenging just the gag provision. Judge Marrero again found the gag provision unconstitutional, and a Federal appeals court upheld parts of that decision in December 2008. The appeals court remanded the case to the lower court for further proceedings that will ultimately allow recipients to request an immediate court review of a gag order.

Following the Inspector General’s 2007 report revealing widespread abuses of NSL powers by the FBI, Senator Russ Feingold and Representative Jerry Nadler introduced legislation to reform the NSL provision. The National Security Letters Reform Act (S. 2088 and H.R. 3189) would restrict FBI searches to the records of those either suspected of or directly connected to terrorism or espionage. It also limits the time that booksellers and librarians are barred by a gag provision from revealing the receipt of an NSL or a Section 215 order. The bills were reintroduced in 2008 but did not receive hearings in either chamber. Rep. Nadler reintroduced the National Security Letters Reform Act (H.R. 1800) on March 30.

Proposed Solutions:
Guiding Principles:

The freedom to read is the cornerstone of a democratic society. People must be free to explore ideas, even those that some may consider “dangerous.” In 1919, when there was a fear of a possible Communist revolution in the United States, Justice Oliver Wendell Holmes declared that there must be freedom even for “expression of opinion that we loathe and believe to be fraught with death.” The power granted to the federal government by Section 215 and the NSL provision of the Patriot Act has created a fear that the government is monitoring what we are reading, making people afraid to read what they want.

Proposed Measures:
Congress should enact legislation like the Freedom to Read Protection Act (H.R. 1157 in the 108th Congress) and the National Security Letters Reform Act (S. 2088 in the 110th Congress and H.R. 1800). The legislation should:

  • Exempt from Section 215 information that identifies a person as having used, requested or obtained specific reading materials or services from a bookstore or library, requiring the government to use other authorities, including grand jury subpoenas to obtain these records (S. 2088 does not exempt this information but limits disclosure to the records of a suspected terrorist or spy or someone known to such a person);
  • Restrict the use of NSLs to obtaining less sensitive information, e.g. information that identifies a person or reveals a person’s home or e-mail address and only when it has “specific and articulable facts” that the information sought: (i) pertains to the activities of a suspected agent of a foreign power, and that obtaining the information sought is the least intrusive means that could be used to identify persons involved in such activities; or (ii) pertains to an agent of a foreign power or a person in contact with an agent of a foreign power;
  • Require the government to use other authorities–such an subpoenas in criminal investigations–to obtain more sensitive information such as email logs, local and long distance toll billing records, and transactional records from financial institutions; judicial orders under Section 215 may be used as long as they do not target personally identifiable information from a bookstore or library.Limit to 30 days the period during which the recipient of an NSL can be gagged unless the government can prove to a judge that there is reason to believe that a specific harm would come to pass unless the gag is extended;
  • Require adoption of minimization procedures based on FISA Section 101(h);
  • Provide for civil damages, including liquidated damages, to any person aggrieved by a clearly illegal misuse of NSL authorities, and such a provision can be found in H.R. 1800.

Allies
These groups support the general principles expressed and the general policy thrust and judgments in the policy proposals described above. The allies listed do not necessarily endorse the specific language in every proposed solution, but they do agree that the proposals reflect the general principles that should govern policy in this area.

  • Association of American Publishers
  • American Booksellers Association
  • American Library Association
  • PEN American Center

Counter-Arguments and Rebuttal:
Opposition is likely to come from some elements of the FBI and the Department of Justice. They will argue:

  • Bookstore and library records should not be exempt from Section 215 because this will make it impossible to use them in an intelligence investigation.
  • Grand jury subpoenas cannot protect the secrecy of an investigation as effectively as a gag order.

Because of the danger of a chilling effect, bookstore and library records should be disclosed only in the course of a criminal investigation. In such investigations, the government may use grand jury subpoenas to seek bookstore and library records.
There are no compelling arguments against the use of grand jury subpoenas to obtain this information. FBI agents told the Inspector General that grand jury subpoenas cannot protect the secrecy of an investigation as effectively as the gag order that accompanies a Section 215 order or an NSL. However, the Inspector General established that the FBI has frequently used subpoenas because they can be obtained more quickly than Section 215 orders.

Although grand jury materials can be used in subsequent court proceedings and could thus inadvertently expose an investigation, the use of secret grand jury information is entirely within the control of federal prosecutors. The United States Attorney Manual (USAM) outlines the rigorous information security systems in place for Limited Official Use information such as grand jury materials, as well as for national security information. The manual makes it clear that other departments and agencies entrust such confidential information to the United States Attorneys' office during investigations and litigation.8 Even grand jury court reporters must have the requisite security clearance when exposed to sensitive material related to national security.9 Federal prosecutors control the release of information for subsequent court proceedings and can certainly withhold information that would threaten national security if disclosed.

Another objection to grand jury subpoenas is that witnesses cannot be compelled to maintain secrecy about their own testimony. This rule protects the First Amendment rights of witnesses to speak about information within their own personal knowledge. Booksellers and librarians have a right to reveal publicly that they have been subpoenaed in a national security investigation as part of a national debate over potential abuses of government authority. However, no bookseller or librarian would ever publicly reveal information about whose records are being sought because this would violate their commitment to protecting the privacy of their customers and patrons.

Recommended Documents for Further Information:
Testimony:

  • Testimony of George Christian, executive director, Library Connection, Windsor, CT, Responding to the Inspector General’s Findings of Improper Use of NSLs by the FBI: Hearing Before the Subcomm. on the Constitution of the S. Comm. On the Judiciary (April 11, 2007)
  • Testimony of Jameel Jaffer, Director of the National Security Project of the American Civil Liberties Union Foundation, Oversight Hearing on H.R. 3189, the National Security Letters Reform Act of 2007:Before the Subcomm. on the Constitution, Civil Rights, and Civil Liberties of the H. Comm. on the Judiciary (April 15, 2008)
  • Testimony of Gregory T. Nojeim, Director of the Project on Freedom, Security, & Technology of the Center for Democracy & Technology, Hearing on National Security Letters: The Need for Greater Accountability and Oversight, Hearing Before the S. Comm. on the Judiciary (April 23, 2008)

The National Security Letter (NSL) statutes in effect include:

  • 12 U.S.C. § 3414(a)(5) – Section 1114(a)(5) of the Right to Financial Privacy Act
  • 15 U.S.C. § 1681u – Section 626 of the Fair Credit Reporting Act
  • 15 U.S.C. § 1681v – Section 627 of the Fair Credit Reporting Act
  • 18 U.S.C. § 2709 – Section of the Electronic Communications Privacy Act
  • 50 U.S.C. § 436 – Section 802 of the National Security Act
  • 18 U.S.C. § 1510 – Criminalizing violations ,/li>
  • P.L. 109-177, Sec. 118
  • P.L. 109-119, Sec. 119
  • 18 U.S.C. § 3511

Section 215 of the Patriot Act:

  • As it appeared originally in 1998: Pub. L. 105-272, Title II, Section 215, 112 Stat. 2411 (Oct. 20, 1998); 50 U.S.C. Section 1862(a) (1998)
  • As it appears today: 50 U.S.C. Sections 1861-1862, as modified by the Patriot Act Pub. L. 107-56, Title II, Sec. 215, 115 Stat. 287 (Oct. 26, 2001), and by the Patriot Reauthorization Act.

Congressional Research Service Reports on National Security Letters:

Relevant Executive Branch Materials:

Department of Justice Inspector General Reports, 2007-08, on NSLs and Section 215:

  • A Review of the FBI’s Use of National Security Letters: Assessment of Corrective Actions and Examination of NSL Usage in 2006, Report of the Department of Justice Inspector General (March 2008)
  • A Review of the FBI’s Use of National Security Letters: Assessment of Corrective Actions and Examination of NSL Usage, Report of the Department of Justice Inspector General (March 2007) (covers usage of NSLs from 2003 through 2005)
  • A Review of the FBI’s Use of Section 215 orders for Business Records in 2006, Report of the Department of Justice Inspector General (March 2008)
  • A Review of the FBI’s Use of Section 215 orders for Business Records, Report of the Department of Justice Inspector General (March 2007) (covers usage of Section 215 orders from 2002 through 2005)

1 Carrie Johnson, “Director of FBI Urges Renewal of Patriot Act,” Washington Post, 26 March 2009, A08.
2 Office of the Inspector General, U.S. Department of Justice, A Review of the FBI’s Use of National Security Letters: Assessment of Corrective Actions and Examination of NSL Usage in 2006, March 2008, 9.
3, Office of the Inspector General, U.S. Department of Justice, A Review of the Federal Bureau of Investigation’s Use of Section 215 Orders for Business Records, March 2007, xi.
4
Alison Leigh Cowan, “Four Librarians Finally Break Silence in Records Case,” New York Times, 31 May, 2006.
5
Office of the Inspector General, U.S. Department of Justice, A Review of the FBI’s use of Section 215 Orders for Business Records in 2006, March 2008, 68.
6
Ibid, 72-3.
7 Ibid, 73.
8 United States' Attorney Manual (USAM) Title 3, Chapter 15.120(c).
9 Ibid.