Bad News: Senate Re-authorizes PATRIOT Act, House Approval Imminent

First, the bad news. On Thursday, the Senate finally approved the bill re-authorizing the expiring sections of the USA PATRIOT Act, including Section 215, which will be extended for four years. The House is expected to approve the bill next week, and President Bush must sign it before March 10. The deadlock that had prevented a vote on the bill since Christmas was broken when four Republican critics of the re-authorization bill announced that they would vote for it after the White House agreed to the addition of several protections for civil liberties.

However, most critics of the PATRIOT Act believe the "compromise" is unsatisfactory. The Bush administration held firm in its opposition to efforts to limit searches under Section 215 of the PATRIOT Act to the records of people who are suspected of terrorism. As a result, the FBI retains the power to request any bookstore or library records that it deems "relevant" to a terrorism investigation. Both the House and the Senate had voted for such a restriction, but the Republican leadership in the House prevented it from being included in the final re-authorization bill.

Good News: Reader Privacy Safeguards Added, Fight to Continue

Now, the good news. Although the civil liberties protections in the "compromise" were relatively minor, the re-authorization bill itself already contained a number of new procedural safeguards and oversight requirements that begin to reestablish protections for reader privacy:

	Two new procedural hurdles have been imposed on FBI agents who want to apply for a Section 215 order to search bookstore or library records: they must first obtain the permission of one of three top officials--the director or deputy director of the FBI or the Executive Assistant Director of National Security; they must also present a statement of facts justifying the relevance of their request to a judge in the secret court established by the Foreign Intelligence Surveillance Act (FISA).
	Booksellers and librarians who receive a Section 215 order have been granted new rights: the right to consult an attorney; the right to challenge the order in the FISA court, and, a year after receiving the order, the right to challenge the “gag” that prohibits revealing the order to anyone other than a lawyer.
	Finally, the public has gained the right to learn whether Section 215 is being abused: the Inspector General of the Justice Department will conduct a review of the use of Section 215 since 2001 and report publicly whether any abuses have occurred; in addition, the Justice Department must annually report the number of bookstore and library searches that have occurred under Section 215.

While Congress has taken an important step forward, the sponsors of the Campaign for Reader Privacy--the American Booksellers Association, the American Library Association, PEN American Center and the Association of American Publishers--believe the fight must continue. They expect that Representative Bernie Sanders of Vermont, Senator Russ Feingold of Wisconsin and other leaders in the campaign to restore the protections for reader privacy will continue to look for opportunities to improve the PATRIOT Act. Senator Arlen Specter of Pennsylvania, the chairman of the Senate Judiciary Committee, has already announced that he will introduce legislation incorporating some of the civil liberties protections that were rejected by the House.

ABFFE Joins U.S. Supreme Court Brief in Prison Case

ABFFE has joined an amicus brief urging the U.S. Supreme Court to strike down a restriction that bars some inmates in Pennsylvnia prisons from receiving newspapers and magazines. In a case that will be argued this year, Beard v. Banks, the Court will consider whether it violates the First Amendment to deny prisoners the right to receive newspapers and periodicals that contain coverage of events outside the prison. While Pennsylvania allows inmates in the general prison population to receive this material, it denies it to prisoners who are held in solitary confinement. They may receive only religious and legal material.

The brief argues that the Pennsylvnia regulation violates the First Amendment by cutting off communication between prisoners and the press. In the absence of news about the criminal justice system, the inmates lose the ability to express their views of current controversies. This violates their First Amendment rights and undermines the rights of the press and the public by depriving them of the opportunity to hear the views of prisoners. The Third Circuit Court of Appeals upheld the challenge to the constitutionality of the Pennsylvania regulation in a 2-1 decision. The dissenting judge, Samuel A. Alito, now sits on the Supreme Court. However, he will not participate in the decision.

The other participants in the brief are "Prison Legal News," a publication that covers issues relating to the legal rights of prisoners, the Reporters Committee for Freedom of the Press, and three other book groups, the Freedom to Read Foundation, the Association of American Publishers and Publishers Marketing Association.
 

ACLU, ABFFE Question Google Subpoena

ACLU, ABFFE and the other plaintiffs in a legal challenge to the Child Online Protection Act (COPA), a federal Internet censorship law, are urging a judge in San Jose, California, to reject the federal government's effort to force Google to reveal a vast quantity of data about the Web sites visited by people who use the Google search engine. The government is seeking the information in connection with its efforts to prove in the COPA case that software filters do not adequately protect children from material that is "harmful to minors."

What the government is seeking is aggregate data, not information about the Web usage of particularly individuals. Therefore, the request does not raise any issues about reader privacy. However, the ACLU brief argues that the government request does not meet the minimum requirement for a subpoena--that the requested information be "relevant and necessary" to the case. While Google has urged the court to quash the subpoena, three other search engine companies have complied with a similar government request.