Washington Brief - December 2001

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Dateline: October 4, 2001

Update on Anti-terrorism Legislation
The horrific acts of terrorism at the World Trade Center and the Pentagon on September 11, 2001 stunned our nation and led to the Administration's efforts to enact swiftly an anti-terrorism package of legislation believed necessary to investigate these horrendous crimes and prevent further acts of terrorism on our land. Within days, proposed legislation was sent to Congress to broaden the surveillance capabilities of law enforcement and the intelligence community. Concerned that a broad expansion of existing surveillance powers may trample on the privacy and First Amendment rights of individuals, more than 150 organizations, including AALL, 300 law professors, computer scientists and individuals announced the creation of a new coalition, In Defense of Freedom, on September 20, 2001 and endorsed ten broad principles. (http://www.indefenseoffreedom.org/). The IDOF wants to ensure that law enforcement and intelligence agencies have the electronic surveillance authority they need in a manner that will protect the privacy and security of all Americans.

In addition to joining the IDOF, AALL issued jointly with the American Library Association and the Association of Research Libraries a short statement, the Library Community Statement on Freedom of Speech and Access to Information, to acknowledge the special role of libraries in balancing access to information for all, the privacy rights of our users, and the responsibility to cooperate with law enforcement agencies. (statement09202001.asp)

In analyzing the Administration's first draft bill, the Anti-terrorism Act of 2001 (ATA) which in fact was never introduced, we quickly realized that several provisions of the act raised special concerns for the library community, including facilitating access to library circulation records and Internet use records by lowering standards and eliminating judicial review. On October 2, 2001, AALL, ALA and ARL sent a letter to every member of Congress to comment on the 122-page legislation introduced as a more balanced approach, the Provide Appropriate Tools Required to Intercept and Obstruct Terrorism (PATRIOT) Act of 2001 that dropped some of the more controversial provisions of the ATA. A Library Community Statement on Proposed Anti-terrorism Measures was attached to this letter (lt10022001.asp) Noting that libraries already provide law enforcement officials with records if served with a court order, the letter identified the five key concerns that we had identified in the legislation:

     

  • first, the expansion of pen register and trap and trace devices to the Internet. The expansion of information captured by these devices to include Internet "dialing, routing, addressing and signaling information" might include considerable information about the content a library user views, as well as personal information submitted to a web site. The situation in libraries, where multiple users share a workstation throughout the day, makes it difficult to narrow the use of a trap and trace device to only reach the communications of a particular individual;

     

  • second, the expansion of access to business records. This provision would include not only library circulation records that are protected from disclosure under most states' confidentiality laws but also electronic records showing the history of web sites visited at a library's public workstation that would include personal information about individuals wholly uninvolved in any federal investigation. An early draft of the bill would have permitted access to these records without a court order;

     

  • third, the expansion of access to educational institution records. Students' privacy and First Amendment rights remain high priorities for us, and we believe existing law allows sufficient access to the records maintained by educational institutions;

     

  • fourth, the expansion of the definition of terrorism to include computer fraud and abuse and potentially sweep in copyright violations; and

     

  • fifth, new mandates for technology that might impose on libraries new requirements for the collection and storage of data.

The PATRIOT Act is on a very fast track and the House and Senate Judiciary Committees have already held quick hearings and mark-up sessions. We have coordinated amendments with our coalition partners, in particular the Center for Democracy and Technology (CDT) and the Electronic Privacy Information Center (EPIC). As of today, we remain concerned about the outcome but are cautiously optimistic. The many members of Congress who are concerned about the erosion of civil liberties and personal privacy are working hard to achieve a balanced compromise that grants the government additional powers that are much more narrowly crafted than those first requested by the Administration. We continue to careful monitor developments and expect that the legislation will go to the House and Senate floor early next week.

Public Access v. National Security: Disappearing Government Information
The Washington Office is monitoring a related issue that follows in the wake of the disaster of September 11th, and that is the beginning of what may become a serious roll back in public access to some federal government information. AALL is committed to freedom of information and the public's right- to-know. In the aftermath of a disaster such as we have just experienced, terrorism is no longer an empty threat. We are beginning to see certain information taken off agency web sites and the recall from libraries of some government publications dating back to the 1960s. Among the resources that have been removed from agency web sites in recent days are the EPA's Risk Management Plans for preventing chemical accidents and topographic maps created by the National Imagery and Mapping Agency. This is going to be a difficult issue for the library community and we will be working closely with other non-profits in carefully monitoring developments.

Amicus Brief in Greenberg v. National Geographic Society
AALL, ALA, ARL and MLA jointly filed an amicus brief in support of the National Geographic Society's appeal to the U.S. Supreme Court in Greenberg v. NGS. The Society is seeking to overturn the decision of the U.S. Court of Appeals for the 11th Circuit that the CD-ROM version of the past 100 years of their magazine was not permissible under the Copyright Act. We filed the joint brief out of concern that the 11th Circuit decision would hinder the use of digital technologies. The brief states that the Copyright Act is media-neutral and permits publishers to preserve and distribute creative works to the public. You'll find AALL's press release and the brief on Washington Office Online at: pr08302001.asp.

(Note: The Supreme Court has denied NGS' petition for certiorari. In a press release announcing its disappointment, NGS noted that there is litigation ongoing in the federal trial court in the Second Circuit, as well as the continuation of several remaining issues in the Eleventh Circuit.)

 

Mary Alice Baish
Associate Washington Affairs Representative
Edward B. WIlliams Law Library
111 G Street, N.W.
Washington, DC 20001-1417
202/662-9200 * FAX:202/662-9202
email:baish@law.georgetown.edu