Congressional Record: July 31, 2003 (Senate)
Page S10621-S10687
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
[...]
By Mr. FEINGOLD (for himself, Mr. Bingaman, Mr. Kennedy, Ms.
Cantwell, Mr. Durbin, Mr. Wyden, Mr. Corzine, Mr. Akaka, and
Mr. Jeffords):
S. 1507. A bill to protect privacy by limiting the access of the
government to library, bookseller, and other personal records for
foreign intelligence and counterintelligence purposes; to the Committee
on the Judiciary.
Mr. FEINGOLD. Mr. President, today I introduce the Library,
Bookseller, and Personal Records Privacy Act.
This bill would amend the Patriot Act to protect the privacy of law-
abiding Americans. It would set reasonable limits on the Federal
Government's access to library, bookseller, medical, and other
sensitive, personal information under the Foreign Intelligence
Surveillance Act and related foreign intelligence authority.
I am pleased that several of my distinguished colleagues--Senators
Bingaman, Kennedy, Cantwell, Durbin, Wyden, Corzine, Akaka, and
Jeffords--have joined me as original cosponsors of this important
legislation.
I and millions of other patriotic Americans love our country and
support our military men and women in their difficult missions abroad,
but worry about the fate of our Constitution here at home.
Much of our Nation's strength comes from our constitutional liberties
and respect for the rule of law. That is what has kept us free for our
two and a quarter century history. Our constitutional freedoms, our
American values, are what make our country worth fighting for in the
fight against terrorism.
Here at home, there is no question that the FBI needs ample resources
and legal authority to prevent future acts of terrorism. But the
Patriot Act went too far when it comes to the government's access to
personal information about law-abiding Americans.
Even though in the end I opposed the Patriot Act, there were several
provisions that I did support. For example, Congress was right to
expand the category of business records that the FBI could obtain by
subpoena pursuant to the Foreign Intelligence Surveillance Act. Prior
to the Patriot Act, the FBI could seek a court order to obtain only
travel records--such as airline, hotel, and car rental records--and
records maintained by storage facilities. The Patriot Act allows any
business records to be subpoenaed. I don't quibble with that change.
But what my colleagues and I do find problematic--and an increasing
number of Americans who value their privacy and First Amendment rights
agree with us--is that the current law allows the FBI broad, almost
unfettered access to personal information about law-abiding Americans
who have no connection to terrorism or spying.
Section 215 of the Patriot Act requires the FBI to show in an
application to the court for a subpoena that the documents are ``sought
for'' an international terrorism or foreign intelligence investigation.
There is no requirement that the FBI make a showing of individualized
suspicion that the documents relate to a suspected terrorism or spy.
In other words, under current law, the FBI could serve a subpoena on
a library for all the borrowing records of its patrons or on a
bookseller for the
[[Page S10622]]
purchasing records of its customers simply by asserting that they want
the records for a terrorism investigation.
During the last year, librarians and booksellers have become
increasingly concerned by the potential for abuse of this law. I was
pleased to stand with the American Booksellers Association and the Free
Expression Network a little over a year ago when we first started to
raise these concerns.
Librarians and booksellers are concerned that under the Patriot Act,
the FBI could seize records from libraries and booksellers in order to
monitor what books Americans have purchased or borrowed, or who has
used a library's or bookstore's internet computer stations, even if
there is no evidence that the person is a terrorist or spy, or has any
connection to a terrorist or spy.
These concerns are so strong, that some librarians across the country
have taken the unusual step of destroying records of patrons' book and
computer use, as well as posting signs on computer stations warning
patrons that whatever they read or access on the internet could be
monitored by the Federal Government.
As a librarian in California said, ``We felt strongly that this had
to be done. . . . The government has never had this kind of power
before. It feels like Big Brother.''
And as the executive director of the American Library Association
said, ``This law is dangerous. . . . I read murder mysteries--does that
make me a murderer? I read spy stories--does that mean I'm a spy?
There's no clear link between a person's intellectual pursuits and
their actions.''
The American people do not know how many or what kind of requests
federal agents have made for library records under the Patriot Act. The
Justice Department refuses to release that information to the public.
But in a survey released by the University of Illinois at Urbana-
Champaign, about 550 libraries around the Nation reported having
received requests from Federal or local law enforcement during the past
year. About half of the libraries said they complied with the law
enforcement request, and another half indicated that they had not.
Americans don't know much about these incidents, because the law also
contains a provision that prohibits anyone who receives a subpoena from
disclosing that fact to anyone.
David Schwartz, president of Harry W. Schwartz Bookshops, the oldest
and largest independent bookseller in Milwaukee, summed up well the
American values at stake when he said: ``The FBI already has
significant subpoena powers to obtain records. There is no need for the
government to invade a person's privacy in this way. This is a uniquely
un-American tool, and it should be rejected. The books we read are a
very private part of our lives. People could stop buying books, and
they could be terrified into silence.''
Afraid to read books, terrified into silence. Is that the America we
want? Is that the America where we'd like to live? I don't think so.
And I hope my colleagues will agree.
It is time to reconsider those provisions of the Patriot Act that are
un-American and, frankly, un-patriotic.
Bu my concerns with the Patriot Act go beyond library and bookseller
records. Under section 215 of the Patriot Act, the FBI could seek any
records maintained by a business. These business records could contain
sensitive, personal information--for example, medical records
maintained by a doctor or hospital or credit records maintained by a
credit agency. All the FBI would have to do is simply assert that the
records are ``sought for'' its terrorism or foreign intelligence
investigation.
Section 215 of the Patriot Act goes too far. Americans rightfully
have a reasonable expectation of privacy in their library, bookstore,
medical, financial, or other records containing personal information.
Prudent safeguards are need to protect these legitimate privacy
interests.
The Library, Bookseller, and Personal Records Privacy Act is a
reasonable solution. It would restore a pre-Patriot Act requirement
that the FBI make a factual, individualized showing that the records
sought pertain to a suspected terrorist or spy.
My bill will not prevent the FBI from doing its job. My bill
recognizes that the post-September 11 world is a different world. There
are circumstances when the FBI should legitimately have access to
library, bookseller, or other personal information.
I would like to take a moment to explain how the safeguard in my bill
would be applied. Suppose the FBI is conducting an investigation of an
international terrorist organization. It has information that suspected
members of the group live in a particular neighborhood. The FBI would
like to serve a subpoena on the library in the suspects' neighborhood.
Under current law, the FBI could decide to ask the library for all
records concerning anyone who has ever borrowed a book or used a
computer, and what books were borrowed, simply by asserting that the
documents are sought for a terrorism investigation. But under my bill,
the FBI could not do so. The FBI would have to set forth specific and
articulable facts giving reason to believe that the person to whom the
records pertain is a suspected terrorist. The FBI could subpoena only
those library records--such as borrowing records or computer sign-in
logs--that pertain to the suspected terrorists. The FBI could not
obtain library records concerning individuals who are not suspected
terrorists.
So, under my bill, the FBI can still obtain documents that it
legitimately needs, but my bill would also protect the privacy of law-
abiding Americans. I might add, that if, as the Justice Department
says, the FBI is using its Patriot Act powers in a responsible manner,
does not seek the records of law-abiding Americans, and only seeks the
records of suspected terrorists or suspected spies, then there is no
reason for the Department to object to my bill.
The second part of my bill would address privacy concerns with
another Federal law enforcement power expanded by the Patriot Act--the
FBI's national security letter authority, or what is sometimes referred
to as ``administrative subpoena'' authority because the FBI does not
need court approval to use this power.
My bill would amend section 505 of the Patriot Act. Part of this
section relates to the production of records maintained by electronic
communications providers. Libraries or bookstores with internet access
for customers could be deemed ``electronic communication providers''
and therefore be subject to a request by the FBI under its
administrative subpoena authority.
As I mentioned earlier, some librarians are so concerned about the
potential for abuse by the FBI that they have taken matters into their
own hands before the FBI knocks on their door. Some librarians have
begun shredding on a daily basis sign-in logs and other documents
relating to the public's use of library computer terminals to access
the Internet.
Again, safeguards are needed to ensure that any individual who
accesses the internet at a library or bookstore does not automatically
give up all expectations of privacy. Like the section 215 I've
discussed, my bill would require an individualized showing by the FBI
of how the records of internet usage maintained by a library or
bookseller pertain to a suspected terrorist or spy.
Yes, the American people want the FBI to be focused on preventing
terrorism. And, yes, it may make sense to make some changes to the law
to allow the FBI access to the information that it needs to prevent
terrorism. But we do not need to change the values that constitute who
we are as a nation in order to protect ourselves from terrorism. We can
protect both our nation and our privacy and civil liberties.
An increasing number of Americans are beginning to understand that
the Patriot Act went too far. Three States and over 130 cities and
counties across the country have now passed resolutions expressing
opposition to the Patriot Act. And it's not just the Berkeleys and
Madisons of the Nation, but other States and communities with strong
libertarian values, such as Alaska and cities in Montana, have passed
such resolutions.
I have many concerns with the Patriot Act. I am not seeking to repeal
it, in whole or in part. My colleagues and I are only seeking to modify
two provisions that pose serious potential for abuse.
The privacy of law-abiding Americans is at stake. Congress should act
to
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protect our privacy. And my bill is a reasonable approach to do just
that.
I urge my colleagues to join me and support the Library, Bookseller,
and Personal Records Privacy Act.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 1507
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Library, Bookseller, and
Personal Records Privacy Act''.
SEC. 2. PRIVACY PROTECTIONS ON GOVERNMENT ACCESS TO LIBRARY,
BOOKSELLER, AND OTHER PERSONAL RECORDS UNDER
FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978.
(a) Applications for Orders.--Subsection (b) of section 501
of the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1861) is amended--
(1) in paragraph (1), by striking ``and'' at the end;
(2) in paragraph (2), by striking the period at the end and
inserting ``; and''; and
(3) by adding at the end the following new paragraph:
``(3) shall specify that there are specific and articulable
facts giving reason to believe that the person to whom the
records pertain is a foreign power or an agent of a foreign
power.''.
(b) Orders.--Subsection (c)(1) of that section is amended
by striking ``finds'' and all that follows and inserting
``finds that--
``(A) there are specific and articulable facts giving
reason to believe that the person to whom the records pertain
is a foreign power or an agent of a foreign power; and
``(B) the application meets the other requirements of this
section.''.
(c) Oversight of Requests for Production of Records.--
Section 502 of that Act (50 U.S.C. 1862) is amended--
(1) in subsection (a), by striking ``the Permanent'' and
all that follows through ``the Senate'' and inserting ``the
Permanent Select Committee on Intelligence and the Committee
on the Judiciary of the House of Representatives and the
Select Committee on Intelligence and the Committee on the
Judiciary of the Senate''; and
(2) in subsection (b), by striking ``On a semiannual
basis,'' and all that follows through ``a report setting
forth'' and inserting ``The report of the Attorney General to
the Committees on the Judiciary of the House of
Representatives and the Senate under subsection (a) shall set
forth''.
SEC. 3. PRIVACY PROTECTIONS ON GOVERNMENT ACCESS TO
INFORMATION ON COMPUTER USERS AT BOOKSELLERS
AND LIBRARIES UNDER NATIONAL SECURITY
AUTHORITY.
(a) In General.--Section 2709 of title 18, United States
Code, is amended--
(1) by redesignating subsection (e) as subsection (f); and
(2) by inserting after subsection (d) the following new
subsection (e):
``(e) Records of Booksellers and Libraries.--(1) When a
request under this section is made to a bookseller or
library, the certification required by subsection (b) shall
also specify that there are specific and articulable facts
giving reason to believe that the person or entity to whom
the records pertain is a foreign power or an agent of a
foreign power.
``(2) In this subsection:
``(A) The term `bookseller' means a person or entity
engaged in the sale, rental, or delivery of books, journals,
magazines, or other similar forms of communication in print
or digitally.
``(B) The term `library' means a library (as that term is
defined in section 213(2) of the Library Services and
Technology Act (20 U.S.C. 9122(2))) whose services include
access to the Internet, books, journals, magazines,
newspapers, or other similar forms of communication in print
or digitally to patrons for their use, review, examination,
or circulation.
``(C) The terms `foreign power' and `agent of a foreign
power' have the meaning given such terms in section 101 of
the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1801).''.
(b) Sunset of Certain Modifications on Access.--Section
224(a) of the USA PATRIOT ACT of 2001 (Public Law 107-56; 115
Stat. 295) is amended by inserting ``and section 505'' after
``by those sections)''.
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