[Congressional Record Volume 151, Number 12 (Tuesday, February 8, 2005)]
[Senate]
[Pages S1131-S1133]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. FEINGOLD (for himself, Mr. Akaka, Mr. Bingaman, Ms. 
        Cantwell, Mr. Corzine, Mr. Dayton, Mr. Durbin, Mr. Jeffords, 
        Mr. Kennedy, and Mr. Wyden):
  S. 317. 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 will reintroduce the Library, 
Bookseller, and Personal Records Privacy Act. The bill is identical to 
the bill I introduced in the 108th Congress, S. 1507.
  This bill would amend Sections 215 and 505 of the USA-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 (``FISA'') and related foreign 
intelligence authority.
  I am pleased that several of my distinguished colleagues have joined 
me as original cosponsors of this important legislation.
  Millions of 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 as we 
strive to win the war on terror.
  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 many 
provisions that I did support. And even in those provisions I sought to 
amend when the bill was debated, there was often some change that I 
supported. For example, Congress was right to expand the category of 
business records that the FBI could obtain 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

[[Page S1132]]

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 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 terrorist 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 purchasing records of its customers simply by 
asserting that they want the records for a terrorism investigation.
  Since the passage of the PATRIOT Act, 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 over 2 years 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.
  In testimony before the Judiciary Committee, Attorney General 
Ashcroft stated that as of September 18, 2003, the Department of 
Justice had never used Section 215. The Department has not made that 
claim in public testimony since then, leading many to speculate that 
the provision has now been used. Whether it has been used once, or 
dozens of times, the problem with the section remains--it is too broad 
and does not permit adequate judicial supervision. There is a potential 
for overreaching that Congress must address.
  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.''
  I would not claim that we have reached the point where people in this 
country are afraid to buy books, but section 215 is a tool that is 
unnecessarily broad. And it raises the specter of indiscriminate 
government snooping into the private lives of innocent citizens, which 
is an unnecessary distraction from the serious law enforcement work 
that is needed to fight terrorism.
  It is time to reconsider those provisions of the PATRIOT Act that are 
un-American and, frankly, unpatriotic.
  But 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 needed 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 while leaving in place 
other PATRIOT Act expansions of this business records power.
  My bill will not prevent the FBI from doing its job. It 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'd 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 obtain records from 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 obtain 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. 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 NSL 
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

[[Page S1133]]

215 fix 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. Four States and over 350 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 this Nation, but other States and communities with strong 
conservative and libertarian values, such as Alaska and cities in 
Montana, that have passed such resolutions.
  I have many concerns with the PATRIOT Act. I am not seeking to repeal 
it, in whole or in part. In this bill, 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, along with their 
confidence in their government. Congress should act to protect our 
privacy and reassure our citizens. The Library, Bookseller, and 
Personal Records Privacy Act bill is a reasonable approach to do just 
that. I urge my colleagues to support this legislation.
  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. 317

       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)''.
                                 ______