Another Chance to Change the Patriot Act

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Chris Finan

By Chris Finan, President of the American Booksellers Foundation for Free Expression

It never hurts to be lucky.

Last week, the members of the Campaign for Reader Privacy (CRP) were in Washington, D.C., for two days of meetings with Congressional staff about the pending reauthorization of three sections of the Patriot Act. These sections include Section 215, the infamous "business records" provision, which authorizes secret searches of bookstore and library records.

Chances are you have heard very little about the reauthorization, which must occur before the sections expire on December 31. Congress has been a little busy with a new president, the Great Recession, healthcare, a new Supreme Court justice, and Afghanistan.

Actually, the members of the Campaign for Reader Privacy (CRP) -- the American Booksellers Association, the American Library Association, the Association of American Publishers, and PEN American Center -- were growing concerned that the end of the year is only a few months away and that members of Congress had not introduced legislation to reform the expiring sections, which will almost surely be renewed in some form. In April, CRP had issued an Appeal to Congress.

The silence was deafening.

This month, CRP members decided that we were going to start meeting with Congressional staff, whether new legislation had been introduced or not. We assembled a list of a dozen staff members to be contacted -- including lawyers for the House Judiciary and Intelligence committees and representatives of Speaker Nancy Pelosi and Majority Leader Harry Reid -- and started arranging meetings.

That's when our luck began to change. We soon had return calls from nine of the 12 people on our list, who were eager to hear what we had to say. It felt as if Congress had suddenly realized that the reauthorization deadline was looming.

Then we got more good news. Senators Russ Feingold (D-WI) and Dick Durbin (D-IL) have played a leading role in the fight to reform the Patriot Act since 2003, introducing several bills addressing a number of provisions in addition to the three that expire this year. They introduced their latest bill last week. Like the Patriot Act, there's an acronym for its title -- the Judiciously Using Surveillance Tools in Counterterrorism Efforts Act (S. 1686), or JUSTICE Act.

The Patriot Act gives the government the right to secretly search any records that it believes are relevant to a terrorism investigation, including the records of people who are not suspected of any criminal acts. This creates a chilling effect that exists because bookstore customers and library patrons know that the government may be tracking what they are reading. The JUSTICE Act would significantly reduce this chilling effect by limiting the use of Section 215 orders and National Security Letters (NSLs) to the records of people who are suspected of terrorism or espionage and people who are known to them. (An NSL is an order that the FBI uses to obtain electronic records from telephone companies, Internet service providers, and anyone else who provides the public with access to the Internet, including libraries and bookstores.)

While the Campaign for Reader Privacy was celebrating the introduction of the JUSTICE Act, we received the final piece of good news. On September 14, Assistant Attorney General Ronald Weich wrote to Congressional leaders to give them the Obama administration's position on reauthorization. The letter called for the renewal of all three sections but included a big "p.s." "We also are aware that Members of Congress may propose modifications to provide additional protections for the privacy of law abiding Americans," Weich said. "[T]he administration is willing to consider such ideas, provided that they do not undermine the effectiveness of these important authorities."

The willingness of the administration to consider changes in Section 215 is potentially enormously important. It means that Congress itself will be more willing to support change. That was certainly the message we received from Congressional staff in discussions that were uniformly serious and constructive. Although some of the staffers were new, many remembered when Vermont booksellers and librarians convinced Bernie Sanders, then the U.S. House Representative from Vermont (and now a senator from Vermont), to introduce the Freedom to Read Protection Act in 2003; when the advocacy of librarians regarding reader privacy drove Attorney General John Ashcroft nearly to distraction; when booksellers and librarians collected more than 200,000 signatures on petitions in less than a year. "You're the right people to be carrying this message," the counsel to Senator Reid told us.

So, now is the strategic -- and auspicious -- time for booksellers, librarians, publishers, and writers to tell their elected officials about the importance of restoring the safeguards for reader privacy that were eliminated by the Patriot Act.

Joining Senators Feingold and Durbin as co-sponsors of the JUSTICE Act (S. 1686) are: Daniel Akaka (D-HI), Jon Tester (D-MT), Robert Menendez (D-NJ), Jeff Bingaman (D-NM), Tom Udall (D-NM), Jeff Merkley (D-OR), Roy Wyden (D-OR), and Bernie Sanders (I-VT). Supporters of reader privacy are encouraged to contact them to express their appreciation for their leadership.

But 90 senators have yet to take a position on the JUSTICE Act. For those who believe that the bill takes important steps to significantly reduce the chilling effects of Section 215 of the Patriot Act, it's important to urge these senators to become co-sponsors of the legislation. You can find their contact information here.

E-mails are the easiest to send, but they often aren't as effective as letters faxed on store letterhead or telephone calls to the Washington or district offices.

The final step supporters of reader privacy can take is less obvious but just as important. It does indeed help to be lucky, but you need more than luck to sustain a long campaign to change a bad law. ABFFE, the bookseller's voice in the fight against censorship, has been working hard since 2001 to restore the safeguards for reader privacy.

ABFFE needs your support. Although founded and sponsored by ABA, ABFFE is a separate organization with its own membership. If you are not a member, please consider joining today. Membership starts at $50. You can join by phone at (212) 587-4025, ext. 13, or online at The ABFFE Store.