Recent Developments in the Patriot Act and Some New (Old) Classified Docs

The federal government has been busy this year revising and renewing the USA Patriot Act and reclassifying old documents that have been available to the public for years. On March 9, 2006, President George Bush signed the bill reauthorizing the infamous USA Patriot Act. The bill, already passed by the Senate, had been approved by the House of Representatives two days before, meeting its two-thirds majority requirement by just two votes. All this was just in time before the original bill was set to expire.

 

This reauthorization makes permanent 14 of the 16 expiring provisions and extends two others, including the much debated and criticized Section 215 which facilitates FBI access to business and library records. The extension is through 2009.

 

The changes to the Patriot Act which affect libraries are confusing to the layman. One change is in the use of National Security Letters, which are subpoenas for financial and electronic records that do not require a judge’s approval. NSLs have been used mainly to get information from electronic communication service providers about subscribers. While secrecy requirements are still in effect, an NSL recipient can now disclose this information to an attorney. More directly, libraries that provide access to the Internet or digital databases are not considered electronic communication service providers unless they also act as Internet service providers. Some library consortiums that provide Internet access to members could fall into this category. (George H. Pike, “USA Patriot Act: What’s Next?” Information Today, 23.4, (April 2006): 1.) The language of the act, exempting “traditional” services of libraries is still rather unclear.

 

American Library Association’s President Michael Gorman criticized the act’s renewal, stating that ALA will seek a stricter standard for Section 215 orders to require the FBI to limit searches of library records to individuals who are connected to terrorism or otherwise suspected of a crime.

 

He also stated that ALA will fight the gag rule that still keeps recipients from disclosing that they have received such orders. (Amy Stone, “President Bush Signs Patriot Act Renewal,” American Libraries, 37:4, (April 2006): 10). Another major revision of the Act does allow a recipient of a Section 215 order to challenge the secrecy provisions after one year. In connection with this, the Department of Justice in April dropped a case involving a group of Connecticut librarians who challenged the gag order regarding a demand for records about library patrons. A lower court had ruled that the gag order unfairly prevented the librarians in question from participating in the national debate over the renewal of the Patriot Act. (“One Small Victory: Connecticut Librarians Can Now Speak Out about FBI Demands,” Knight Ridder Tribune Business News, 19 April 2006: 1). The USA Patriot Act has not been the only controversial issue regarding the federal government and freedom of information. Starting in 1999, and accelerating after 2001, the CIA and other government intelligence agencies have restored classified status to thousands of pages of government documents previously available to the public. Many of these are reports from the days of the Korean War and the early Cold War which have been readily available to historians and scholars for years. No efforts are being made (if they could possibly be made) to locate copies of these documents that are in private hands, although possessing them could put one at jeopardy of violating the Espionage Act. Also, although these reclassified documents have been removed from the shelves of the National Archives and Records Administration’s facility in Maryland, some are still available publicly through the Internet. (Scott Shane, “ U.S. Reclassifies Many Documents in Secret Review,” New York Times, 21 Feb. 2006: A1; Aliya Sternstein, “Feds Secretly Reclassify Data,” Federal Computer Week, 20:4, (27 Feb. 2006): 9). In addition, the number of new documents classified in 2004 was a record 15.6 million. This is nearly double the number in 2001, according to the Security Oversight Office. The declassification process has meanwhile slowed from 204 million pages in 1997 to 28 million pages in 2004. (Nikki Swartz, “Government Secrecy Reaches Historic Levels,” Information Management Journal, 39:5, (Sep/Oct 2005): 14)

 

Both issues, the right to privacy and the freedom of access to information, will continue to provoke controversy in the months and years to come and be of concern to librarians and researchers

Kevin Norris