[Congressional Record Volume 149, Number 30 (Tuesday, February 25, 2003)]
[Senate]
[Pages S2703-S2707]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. LEAHY (for himself, Mr. Grassley, and Mr. Specter):
  S. 436. A bill to amend the Foreign Intelligence Surveillance Act of 
1978 to improve the administration and oversight of foreign 
intelligence surveillance, and for other purposes; to the Committee on 
the Judiciary.
  Mr. LEAHY. Mr. President, I rise today, joined by my good friends, 
Senators Grassley and Specter, to introduce the Domestic Surveillance 
Oversight Act of 2003. This bill does not change or diminish any power 
available to the government in the pursuit of homeland security, but it 
does create important mechanisms to allow the Congress and the public 
to assess how effectively and appropriately the government is using its 
domestic surveillance powers.
  I also rise to speak about an important bipartisan report being 
released today by myself, Senator Specter, and Senator Grassley 
entitled ``FBI Oversight in the 107th Congress by the Senate Judiciary 
Committee: FISA Implementation Failures,'' ``FIF Report''. The report 
summarizes our joint conclusions based upon our bipartisan oversight of 
the FBI and DOJ's performance in using the Foreign Intelligence 
Surveillance Act, ``FISA'', an important tool in conducting domestic 
surveillance. The report distills our mutual findings and conclusions 
from numerous bipartisan hearings, classified briefings and other 
oversight activities. It concludes that the FBI continues to be in need 
of serious reform. The report also sets forth our bipartisan 
disappointment with the DOJ and FBI's non-responsiveness to our 
oversight efforts and the resulting necessity for better oversight 
tools, such as the bill we introduce today.
  Our committee worked with the FBI and the Justice Department to 
achieve initial reforms both through administrative steps and also 
through legislation. Most notably, last fall we enacted a new 
Department of Justice charter that included some provisions of the FBI 
Reform Act. We need to enact the rest of that bipartisan bill.
  Taken together, this bill and report represent a bipartisan statement 
about the importance of oversight and, where possible, sunshine on the 
government's domestic surveillance efforts. Only by fulfilling our 
constitutional responsibility to conduct such oversight, can we in 
Congress help to protect both the security and the liberty of the 
American people.
  In times of national stress there is an understandable impulse for 
the government to ask for more power. Sometimes more power is needed, 
but many times it is not. After the September 11 attacks, we worked 
together in a bipartisan fashion and with unprecedented speed to craft 
and enact the USA PATRIOT Act which enhanced the government's powers.
  Now, as word continues to circulate about a possible sequel to the 
USA PATRIOT Act that the Department of Justice is considering in secret 
and that supposedly would give government even more power, it is 
constructive for us to first examine and understand how Federal 
agencies are using the power they already have. We must answer two 
questions.
  First, is that power being used effectively, so that our citizens not 
only feel safer, but are in fact safer?
  Second, is that power being used appropriately, so that our liberties 
are not sacrificed?
  In short, before we can craft and enact new laws, we must first make 
sure that the Department of Justice and FBI are properly using the laws 
that are already on the books. That is the purpose of enhanced 
Congressional oversight.
  Domestic Surveillance Oversight Act:
  Today, with the Senior Senator from Iowa and the Senior Senator from

[[Page S2704]]

Pennsylvania, I am introducing the bipartisan Domestic Surveillance 
Oversight Act of 2003. This bill provides basic information to Congress 
and the American people about the FBI's use of FISA to conduct 
surveillance on Americans. Such domestic surveillance is certainly 
appropriate in some cases, and the bill does not intrude in any way 
upon law enforcement or diminish its ability to conduct FISA 
surveillance when necessary and appropriate. Nor does it require the 
Department of Justice to publicly release any sensitive or classified 
information. Rather, it seeks reporting only on the aggregate number of 
FISA wiretaps and other surveillance measures directed specifically 
against Americans each year. In this way, the public and Congress can 
assess over time whether the government has turned more of its powerful 
surveillance techniques on its own citizens, as opposed to non-U.S. 
persons. If necessary, we can ask it to explain its actions.
  The amendment also clarifies that the Foreign Intelligence 
Surveillance Court, FISC, and FISA Court of Review have the authority 
to adopt rules and procedures, and it requires that those rules be 
shared with the Intelligence and Judiciary Committees of the Senate and 
House of Representatives as well as the Supreme Court. In the last 
year, and only after requests from Senators Grassley, Specter and 
myself, the FISC shared its rules with Congress for the first time. One 
of those rules and one which was eventually rejected by the FISA Review 
Court embodied a controversial legal interpretation of a provision we 
crafted in the USA PATRIOT Act. The Congress ought to have been 
immediately informed of that court rule either by the FISC or the DOJ, 
but it was not. It is entirely appropriate that a court be enabled to 
promulgate its own rules. It is entirely inappropriate that those rules 
be kept secret from Congress.
  Consistent with national security, the bill directs the Attorney 
General to include in an annual public report the portions of 
applications to and opinions of the FISC and FISA Court of Review that 
contain significant legal interpretations of FISA or the Constitution. 
These disclosures will not include the facts of any particular case, 
which this provision requires to be redacted in order to preserve 
national security. This type of disclosure, however, will prevent 
secret case law from developing which interprets both FISA and the 
Constitution in ways unknown to the Congress and the public.
  The first annual report required under this provision is also to 
include the same type of legal information for the four years before 
the year of the first report.
  Finally, the bill would require a report to appropriate committees of 
Congress on the use of National Security Letters to request information 
from public libraries or libraries affiliated with high schools or 
universities. Such letters are functionally equivalent to an 
administrative subpoena and require no court approval. We have heard 
from members of the library community that the FBI may be returning to 
a discredited practice from the Hoover days of monitoring public and 
college libraries to ascertain what books people are reading. In fact, 
a media report from Vermont, which I ask consent to place in the 
Record, indicates that bookstore owners there are scared to keep 
records for just this reason. Again, this provision would not in any 
way limit the use of National Security Letters, but would merely 
require an annual report of such activities to Congress, so that we can 
ascertain whether or not these administrative subpoenas are being used 
for improper purposes. This section would also ensure that reports on 
the use of such letters are provided to all appropriate oversight 
committees.
  This enhanced reporting is exactly what was called for by the 
American Bar Association in a resolution adopted on February 10, and 
echoed in a Washington Post editorial on February 12, 2003. As the Post 
editorialized, the Department of Justice ``needs to disclose how it is 
using the [powers] it already has. Yet the Justice Department has 
balked at reasonable oversight and public information requests . . . 
Congress should insist on a full understanding of what the [D]epartment 
is doing.'' I ask unanimous consent to print a copy both of the ABA 
resolution as well as the Washington Post editorial in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

       Adopted February 10, 2003:
       Section of Individual Rights and Responsibilities (lead 
     sponsor); Section of Litigation; Section of Criminal Justice, 
     Section of Administrative Law and Regulatory Practice; 
     Section of International Law and Practice; Section of Science 
     and Technology Law; Young Lawyers Division.
       Resolved, That the American Bar Association urges the 
     Congress to conduct regular and timely oversight, including 
     public hearings (except when Congress determines that the 
     requirements of national security make open proceedings 
     inappropriate), to ensure that government investigations 
     undertaken pursuant to the Foreign Intelligence Surveillance 
     Act, 50 U.S.C. 1801 et seq. (``FISA'' or ``the Act'') do not 
     violate the First, Fourth, and Fifth Amendments to the 
     Constitution and adhere to the Act's purposes of 
     accommodating and advancing both the government's interest in 
     pursuing legitimate intelligence activity and the 
     individual's interest in being free from improper government 
     intrusion.
       Further resolved, That the American Bar Association urges 
     the Congress to consider amendments to the Act to
       (1) Clarify that the procedures adopted by the Attorney 
     General to protect United States persons, as required by the 
     Act, should ensure that FISA is used when the government has 
     a significant (i.e. not insubstantial) foreign intelligence 
     purpose, as contemplated by the Act, and not to circumvent 
     the Fourth Amendment; and
       (2) Make available to the public an annual statistical 
     report on FISA investigations, comparable to the reports 
     prepared by the Administrative Office of the United States 
     Courts, pursuant to 18 U.S.C. sec. 2519, regarding the use of 
     Federal wiretap authority.
                                  ____


               [From the Washington Post, Feb. 12, 2003]

                        Patriot Act: The Sequel

       The Justice Department's draft of a second round of law 
     enforcement and domestic security authorities--a kind of 
     sequel to the USA Patriot Act of 2001--offers an unintended 
     glimpse of additional powers that the Bush administration if 
     coveting. The draft, labeled ``CONFIDENTIAL--NOT FOR 
     DISTRIBUTION'' and dated Jan. 9, was obtained last week by 
     the Center for Public Integrity, Washington-based nonprofit. 
     Department officials quickly stressed that it is not a final 
     version. But the document's proposals may become the next 
     battlefield in the struggle to preserve American liberties 
     while enabling the domestic war on terrorism. The proposals 
     range from constructive to dangerous.
       A government DNA database for terrorists and suspected 
     terrorists could be useful, though it would need refinement 
     to protect suspects who are proved innocent. Another useful 
     proposal would allow the special appeals court that reviews 
     government surveillance requests in national security cases 
     to appoint lawyers to argue against the government. Under 
     current law, it hears only from one side. The draft would 
     create a federal crime for terrorist hoaxes, which now must 
     be prosecuted under provisions designed for other purposes.
       But the draft contains many troubling provisions. It would 
     further expand intelligence surveillance powers into the 
     traditional realm of law enforcement. Like a Senate bill soon 
     to be taken up by the Judiciary Committee, it would allow 
     foreigners suspected of terrorism to be watched as 
     intelligence targets--rather than subjects of law 
     enforcement--even if they could not be linked to any foreign 
     group or state. But it would go further. It would allow 
     intelligence surveillance in certain circumstances even when 
     the government could not produce any evidence of a crime. It 
     also would allow certain snooping with no court 
     authorization, not only--as now--when Congress declared war 
     but when it authorized force or when the country was 
     attacked. The result of such changes would be to magnify the 
     government's discretion to pick the legal regime under which 
     it investigates and prosecutes national security cases and to 
     give it more power unilaterally to exempt people from the 
     protections of the justice system and place them in a kind of 
     alternative legal world. Congress should be pushing in the 
     opposite direction.
       Before the department asks Congress for more powers, it 
     needs to disclose how it is using the ones it already has. 
     Yet the Justice Department has balked at reasonable oversight 
     and public information requests. In fact, the draft 
     legislation would allow the department to withhold 
     information concerning the identity of Sept. 11 detainees--a 
     matter now before the courts. At the very least, Congress 
     should insist on a full understanding of what the department 
     is doing before granting the executive branch still more 
     authority.
  This bill does not in any way diminish the government's powers, but 
it does allow Congress and the public to monitor their use. We cannot 
fight terrorism effectively or safely with the lights turned out and 
with little or no accountability. It is time to harness the power of 
the sun to enable us to better win this fight.

[[Page S2705]]

  FIF Report: The wisdom of this bill is also supported by our 
bipartisan report, which Senators Specter, Grassley, and I also release 
today, based on a year of bipartisan effort.
  Today's FBI oversight report focuses on the use of the immense powers 
granted under FISA. We expanded the government's FISA powers after 
September 11 in the USA PATRIOT Act, a law that all three of us had a 
hand in crafting.
  Unfortunately our hearings, briefings and other oversight revealed 
that the FBI is ill-equipped to implement FISA. Nor are its problems 
amenable to legal ``quick fixes.'' In fact, many of these problems are 
not unique to the FISA context, but echo broader and more systemic 
problems that have plagued the FBI for years.
  Here are a few of the report's basic conclusions: Poor training: Key 
FBI agents and officials were inadequately trained in important aspects 
of not only FISA, but also in fundamental aspects of criminal law. 
Excessive secrecy: Secrecy regarding the most basic legal and 
procedural aspects of the FISA have hurt, not helped, implementation of 
FISA. Headquarters Bureaucracy: FBI headquarters often not only fails 
to support the work of many of its best street agents, but it actually 
sometimes hinders them in doing their important jobs. Culture of 
Quashing Criticism: The FBI has a deep rooted culture of punishing 
those who point out problems. Just yesterday, in fact, a DOJ Inspector 
General's Report was released substantiating claims of retaliation 
against FBI United Chief John Roberts for his approved appearance on 60 
Minutes. More troubling, these allegations involved senior officials at 
the FBI, including the head of the division official charged with 
investigating claims of misconduct in the FBI. This culture has 
materially hurt the FBI's intelligence operations.
  Unfortunately, as our report describes in detail, we have run into 
many roadblocks in conducting FBI oversight. Some obstacles were due to 
a lack of cooperation by the Department of Justice and FBI. The FIF 
Report outlines many prime examples supporting the necessity of the 
increased reporting called for in the bill that I introduce with 
Senators Grassley and Specter today. For instance, the FIF Report 
describes how the FISC issued an unclassified opinion last May strongly 
criticizing the DOJ and FBI and containing important legal 
interpretations of FISA and the USA PATRIOT Act amendments to it. Even 
after repeated requests by myself, Senator Specter and Senator Grassley 
for a copy of this unclassified legal opinion, the DOJ refused to 
provide us one. Eventually, the FISC, not DOJ, provided us with a copy 
of this unclassified document and, again only at our request, copies of 
the FISA Court of Review's argument and opinion were made public. I 
hope that this resistance towards legitimate oversight will not be 
shown in the future.
  Sunlight is the best solvent for the sticky and ineffective machinery 
of government, and it is the best disinfectant to discourage the abuse 
of power. Our comprehensive FBI oversight has revealed that there is 
much work to be done.
  Effective oversight of the powers given to the government for 
homeland security means fewer blank checks, and more checks and 
balances.
  I ask unanimous consent, that the text of the bill I am introducing, 
a sectional analysis, and a letter of support be printed in the Record.
   There being no objection, the additional materials were ordered to 
be printed in the Record, as follows:

                                 S. 436

       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 ``Domestic Surveillance 
     Oversight Act of 2003''.

     SEC. 2. IMPROVEMENTS TO FOREIGN INTELLIGENCE SURVEILLANCE ACT 
                   OF 1978.

       (a) Rules and Procedures for FISA Courts.--Section 103 of 
     the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 
     1803) is amended by adding at the end the following new 
     subsection:
       ``(e)(1) The courts established pursuant to subsections (a) 
     and (b) may establish such rules and procedures, and take 
     such actions, as are reasonably necessary to administer their 
     responsibilities under this Act.
       ``(2) The rules and procedures established under paragraph 
     (1), and any modifications of such rules and procedures, 
     shall be recorded, and shall be transmitted to the following:
       ``(A) All of the judges on the court established pursuant 
     to subsection (a).
       ``(B) All of the judges on the court of review established 
     pursuant to subsection (b).
       ``(C) The Chief Justice of the United States.
       ``(D) The Committee on the Judiciary of the Senate.
       ``(E) The Select Committee on Intelligence of the Senate.
       ``(F) The Committee on the Judiciary of the House of 
     Representatives.
       ``(G) The Permanent Select Committee on Intelligence of the 
     House of Representatives.''.
       (b) Reporting Requirements.--(1) The Foreign Intelligence 
     Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) is further 
     amended--
       (A) by redesignating title VI as title VII, and section 601 
     as section 701, respectively; and
       (B) by inserting after title V the following new title:

                ``TITLE VI--PUBLIC REPORTING REQUIREMENT


                ``public report of the attorney general

       ``Sec. 601. In addition to the reports required by sections 
     107, 108, 306, 406, and 502, in April of each year, the 
     Attorney General shall issue a public report setting forth 
     with respect to the preceding calendar year--
       ``(1) the aggregate number of United States persons 
     targeted for orders issued under this Act, including those 
     targeted for--
       ``(A) electronic surveillance under section 105;
       ``(B) physical searches under section 304;
       ``(C) pen registers under section 402; and
       ``(D) access to records under section 501;
       ``(2) the number of times that the Attorney General has 
     authorized that information obtained under such sections or 
     any information derived therefrom may be used in a criminal 
     proceeding;
       ``(3) the number of times that a statement was completed 
     pursuant to section 106(b), 305(c), or 405(b) to accompany a 
     disclosure of information acquired under this Act for law 
     enforcement purposes; and
       ``(4) in a manner consistent with the protection of the 
     national security of the United States--
       ``(A) the portions of the documents and applications filed 
     with the courts established under section 103 that include 
     significant construction or interpretation of the provisions 
     of this Act or any provision of the United States 
     Constitution, not including the facts of any particular 
     matter, which may be redacted;
       ``(B) the portions of the opinions and orders of the courts 
     established under section 103 that include significant 
     construction or interpretation of the provisions of this Act 
     or any provision of the United States Constitution, not 
     including the facts of any particular matter, which may be 
     redacted; and
       ``(C) in the first report submitted under this section, the 
     matters specified in subparagraphs (A) and (B) for all 
     documents and applications filed with the courts established 
     under section 103, and all otherwise unpublished opinions and 
     orders of that court, for the 4 years before the preceding 
     calendar year in addition to that year.''.
       (2) The table of contents for that Act is amended by 
     striking the items for title VI and inserting the following 
     new items:

                ``TITLE VI--PUBLIC REPORTING REQUIREMENT

``Sec. 601.  Public report of the Attorney General.

                      ``TITLE VII--EFFECTIVE DATE

``Sec. 701.  Effective date.''.

     SEC. 3. ADDITIONAL IMPROVEMENTS OF CONGRESSIONAL OVERSIGHT OF 
                   SURVEILLANCE ACTIVITIES.

       (a) Title 18, United States Code.--Section 2709(e) of title 
     18, United States Code, is amended by adding at the end the 
     following new sentence: ``The information shall include a 
     separate statement of all such requests made of institutions 
     operating as public libraries or serving as libraries of 
     secondary schools or institutions of higher education.''.
       (b) Right to Financial Privacy Act of  1978.--Section 
     1114(a)(5)(C) of the Right to Financial Privacy Act of 1978 
     (12 U.S.C. 3414(a)(5)(C)) is amended to read as follows:
       ``(C)(i) On a semiannual basis the Attorney General shall 
     fully inform the congressional intelligence committees, the 
     Committee on the Judiciary of the House of Representatives, 
     and the Committee on the Judiciary of the Senate concerning 
     all requests made pursuant to this paragraph.
       ``(ii) In the case of the semiannual reports required to be 
     submitted under clause (i) to the congressional intelligence 
     committees, the submittal dates for such reports shall be as 
     provided in section 507 of the National Security Act of 1947.
       ``(iii) In this subparagraph, the term `congressional 
     intelligence committees' has the meaning given that term in 
     section 3 of the National Security Act of 1947 (50 U.S.C. 
     401a).''.
       (c) Fair Credit Reporting Act.--Section 625(h)(1) of the 
     Fair Credit Reporting Act (15 U.S.C. 1681u(h)(1)), as amended 
     by section 811(b)(8)(B) of the Intelligence Authorization Act 
     for Fiscal Year 2003 (Public Law 107-306), is further 
     amended--
       (1) by striking ``and the Committee on Banking, Finance and 
     Urban Affairs of the House of Representatives'' and inserting 
     ``,

[[Page S2706]]

     the Committee on Financial Services, and the Committee on the 
     Judiciary of the House of Representatives''; and
       (2) by striking ``and the Committee on Banking, Housing, 
     and Urban Affairs of the Senate'' and inserting ``, the 
     Committee on Banking, Housing, and Urban Affairs, and the 
     Committee on the Judiciary of the Senate''.

 Sectional Analysis of the Domestic Surveillance Oversight Act of 2003

       Sec. 1. Short title. The short title of the bill is the 
     ``Domestic Surveillance Oversight Act of 2003.''
       Sec. 2. Additional Improvements to Foreign Intelligence 
     Surveillance Act of 1978 (FISA). This section amends FISA to 
     clarify the authority of the Intelligence Surveillance Court 
     (FISC) and FISA Court of Review to establish such rules and 
     procedures as are reasonably necessary for their operation.
       In addition, the bill requires the FISC and FISA Court of 
     Review to transmit such rules and procedures to the judges on 
     the FISC and Court of Review, the Chief Justice of the U.S., 
     and the Judiciary and Intelligence Committees of the Senate 
     and House. Previously, these rules have not been provided to 
     Congress as a matter of course.
       This section also adds to the public reporting requirements 
     in FISA. It directs the Attorney General (AG) to include in 
     the annual public report the aggregate number of U.S. persons 
     targeted for any type of order under the act.
       The report will also include information about the 
     aggregate number of times FISA is being used for criminal 
     cases, to enhance oversight regarding the changes enacted in 
     the USA PATRIOT Act. The report will list the number of times 
     the AG authorized FISA information to be used in a criminal 
     proceeding or for law enforcement purposes.
       Finally, ``in a manner consistent with the protection of 
     national security,'' this section directs the report to 
     include the portions of applications to and opinions of the 
     FISC and FISA Court of Review that involve significant 
     construction or interpretation of FISA or the Constitution. 
     Such disclosures shall not include the facts of any 
     particular case which are to be redacted. The first annual 
     report is to include application and opinion information for 
     the four years preceding the year of the first report to 
     ensure that important legal interpretations, such as FISA 
     Court of Review opinion that was almost not made public last 
     summer, are publicly disseminated.
       Sec. 3. Additional Improvements of Congressional Oversight 
     of Surveillance Activities. This section adds to a reporting 
     requirement to the House and Senate Judiciary and 
     Intelligence Committees on the use of National Security 
     Letters. The report will include a statement of requests for 
     information directed to public libraries or libraries 
     affiliated with high schools and universities. The section 
     also would ensure that current reports on the use of such 
     letters are provided to both the intelligence and judiciary 
     committees as well as updating the names of certain pertinent 
     committees that receive such reports. The section would allow 
     Congress to assess the validity of public reports that a long 
     discredited program of domestic library surveillance is being 
     revived.
                                                February 25, 2003.
     Hon. Patrick J. Leahy,
     Senate Judiciary Committee, Russell Senate Building, 
         Washington, DC.
     Hon. Charles E. Grassley,
     Senate Judiciary Committee, Hart Senate Building, Washington, 
         DC.
     Hon. Arlen Specter,
     Senate Judiciary Committee, Hart Senate Building, Washington, 
         DC.
       Dear Senators Leahy, Grassley and Specter: Wewrite in 
     support of the Domestic Surveillance Oversight Act of 2003. 
     The Foreign Intelligence Surveillance Act (FISA) authorizes 
     secret wiretaps and secret searches of the homes and offices 
     of Americans and other forms of data gathering for national 
     security reasons. While the initial enactment of FISA was an 
     appropriate accommodation of national security interests and 
     individual rights to privacy and due process, since its 
     initial enactment FISA has been expanded in ways that pose an 
     increased threat to individual rights. Moreover, FISA 
     surveillance authorities are now being used more and more; 
     indeed, it appears that the federal government carries out 
     more electronic surveillance under the authority of FISA than 
     under criminal rules.
       Given the absolute secrecy of FISA searches and seizures, 
     mechanisms for public accountability are crucial to protect 
     rights of privacy--as well as to insure effective and 
     efficient use of this extraordinary authority. Your bill to 
     require public accounting of the number of US persons 
     subjected to surveillance under FISA, the number of times 
     FISA information is used for law enforcement purposes, and to 
     require disclosure of other information would be an important 
     step in providing for oversight and public scrutiny of these 
     extraordinary powers.
       Disclosure of such information is important to informing 
     the American public and will not be harmful to the national 
     security, as it will not give any greater clues as to who is 
     being targeted, or the scope of the anti-terrorism efforts 
     than is already known from the Justice Department's own 
     extensive public descriptions of those efforts.
       We commend you on your leadership on this issue and look 
     forward to working with you and your colleagues to achieve 
     appropriate policies for responding to terrorism and other 
     national security threats.
     Laura W. Murphy,
       Director, Washington National Office.
     Timothy H. Edgar,
       Legislative Counsel, American Civil Liberties Union.
     James X. Dempsey,
       Executive Director, Center for Democracy and Technology.
     Kate Martin,
       Director, Center for National Security Studies.
     Morton H. Halperin,
       Director, Open Society Policy Center.
                                  ____


            [From the Burlington Free Press, Feb. 19, 2003]

                 Bookstore Owners Fight Disclosure Act

                           (By Cadence Mertz)

       The gears turned in Laurie Kettler's mind as she 
     contemplated how the USA Patriot Act might affect the 
     bookstore she co-owns in St. Albans.
       At first, she thought The Kept Writer Bookshop & Cafe had 
     no records that authorities could use to track what her 
     customers are reading. Then it dawned on her. Records of 
     online purchases stay in the system for a year. Authorities 
     could demand those records under a provision of the USA 
     Patriot Act passed in the wake of Sept. 11 to aid in tracking 
     down possible terrorists.
       ``I guess I'm going to need to do something about that,'' 
     Kettler said of the online records. She doesn't want that 
     information to go to the federal government. ``It just seems 
     like a violation of privacy.''
       Efforts to prevent police from obtaining blueprints of 
     their customers' reading habits are on other bookstore 
     owners' minds. Michael Katzenberg, co-owner of Bear Pond 
     Books in Montpelier, has purged lists of the books its 
     customers buy.
       Other local bookstores cheer Katzenberg's decision. They 
     cite customer privacy and the First Amendment protecting 
     citizens' rights to free speech. The government is over-
     stepping its bounds, and bookstore owners will go to lengths 
     to protect the very law that allows authors to publish 
     without censor.
       ``I support what he did, and I'm right there with him,'' 
     said Mike DeSanto, co-owner of the Book Rack and 
     Children's Pages in Winooski, who declined to disclose 
     whether he has a list of his customers' reading 
     preferences. If he did have a list, he says, he would be 
     considering getting rid of it.
       ``This is wrong what they're doing,'' DeSanto said of the 
     USA Patriot Act.
       Customers at Flying Pig Books in Charlotte participate in a 
     readers' club--after buying $100 of books patrons receive $10 
     off their next purchase, co-owner Josie Leavitt said. It is 
     unlikely the bookstore would purge that record, which has the 
     titles of customers' past purchases, because of its 
     usefulness, Leavitt said. Customers like to have a reminder 
     of what they have bought in the past, she said.
       Faced with a request from law enforcement, Leavitt said the 
     bookstore would refuse to turn over the information. She 
     belongs to the American Booksellers Foundation for Free 
     Expression, the group that helped defend a Colorado bookstore 
     last year against just such an intrusion by law enforcement.
       ``That's what books are all about. Books represent freedom 
     and if people can't read they're not free,'' Leavitt said.
       The Vermont Library Association agrees. The group sent a 
     letter to Vermont's congressional delegation describing the 
     provisions of the USA Patriot Act pertaining to libraries and 
     book stores as unconstitutional.
       ``They are dangerous steps toward the erosion of our most 
     fundamental civil liberties,'' the October letter reads in 
     part.
       Peter Hall, U.S. attorney for Vermont, said the measure 
     would be used only in ``very rare and limited and supervised 
     circumstances,'' Hall said. Bookstore owners can do what they 
     want with records of their customers' purchases, he said.
       Borders Books & Music would review requests from 
     authorities on a case-by-case basis, said Tod Gross, manager 
     of the Burlington store. The national chain keeps no records 
     of customer purchases, except for special orders, and those 
     files are purged monthly, Gross said.
       Two recent court cases have shown law enforcement's 
     willingness to seek records from bookstores.
       Independent counsel Kenneth Starr attempted to obtain a 
     list of the books Monica Lewinsky had bought from a 
     Washington, D.C. bookstore while investigating former 
     President Bill Clinton. Law enforcement in Colorado 
     subpoenaed a bookstore customers' purchases during a drug 
     investigation. A Colorado Supreme Court blocked the subpoena.
       Kettler, in St. Albans, said her first thoughts are for her 
     customers' privacy. A woman seeking a book on ovarian cancer

[[Page S2707]]

     should not have to worry her illness might be disclosed by 
     the shopkeeper, Kettler said.
       ``I guess I'm going to stop keeping such meticulous 
     records,'' she said.
                                 ______