ALA, ARL Respond to Recent Legislation on Warrantless Surveillance

Along with the Association of Research Libraries (ARL), ALA recently sent letters to Congress regarding legislation on warrantless surveillance.

On October 9, ALA and ARL sent a letter to Rep. Lamar Smith, Ranking Member of the U.S. House Judiciary Committee.

The letter was sent, with an attachment, outlining the library community’s take on the Protect America Act (S. 1927), which has since been enacted into public law. It is reprinted below and is also available as a PDF.

The Library Community takes a principled stand on the Protect America Act (PAA) that simply says when the government seeks information from libraries in the United States, it should do so only with a warrant authorized by the Foreign Intelligence Surveillance Court (FISC), regardless of whether the person using the library services is a U.S. citizen or not, or located within the United States or abroad. Libraries are gateways to freedom abroad. Libraries are offering expanded services globally and providing distance learning opportunities and serving American and foreign student communities abroad as part of their essential mission.

We believe that these opportunities – the chance to bring access to knowledge and freedom of expression abroad – will be diminished if it is understood that the U.S. government may, without a warrant or judicial oversight, monitor the use of library facilities by any person abroad if the government believes the communication or usage concerns foreign intelligence. We are concerned that Nations who invite in, or contract with, libraries and academic institutions for expanded services and local presence will limit or discontinue the relationship or impose other obligations for localized infrastructure that will make it financially impossible to have a presence in the local country.

We believe that at least our efforts will not be affected as much if the process is clear that any access to library information or infrastructure in the United States will be subject to judicial authorization and oversight.

On October 15, ALA and ARL sent letters to two House and two Senate Committees, as well as Congressional leadership, concerning the Responsible Electronic Surveillance That is Overseen, Reviewed, and Effective (RESTORE) Act of 2007 (H.R. 3773).

On behalf of the American Library Association (ALA) and the Association of Research Libraries (ARL) concerning selected provisions in the proposed reauthorization of the Protect America Act (PAA). We very much appreciate the many positive changes included in the “RESTORE Act,” H.R. 3773. These changes address some of our concerns with the PAA. Nevertheless, prior to House consideration of this legislation, we request that a serious concern regarding access to library records be resolved.

Libraries are offering expanded services globally by providing distance learning opportunities to American and foreign student and faculty communities abroad. Our users abroad access our services remotely in support of their educational and research activities. We believe that these opportunities – the chance to bring access to knowledge and freedom of expression abroad – will be diminished if it is understood that the U.S. government may, without a warrant or judicial oversight, monitor the use of library facilities by non-U.S. citizens abroad if the government believes the communication or usage concerns foreign intelligence. This is not a hypothetical concern. U.S. universities have extensive educational programs throughout the world, and it is possible, if not likely that student and faculty library users at those foreign campuses of U.S. educational institutions will be relying on services or routers that reside in the stateside facilities.

The position of ALA and ARL is principled and unflagging – when the government seeks information from libraries in the United States, it should do so only with a warrant authorized by the Foreign Intelligence Surveillance Court (FISC) and we ask Congress to ensure that the RESTORE Act reflects this important principle for libraries. ALA and ARL believe that, regardless of whether the person using the library services is a U.S. citizen or not, or located within the United States or abroad, the individual’s library records are private.

The RESTORE Act, like the PAA before it, permits the government to compel communications providers to provide assistance in the warrantless surveillance of non-U.S. persons abroad. The Department of Justice has consistently taken the position that libraries may be deemed communications providers when they provide Internet access or email to their users, as is obviously the case with library communities abroad. Thus the legislation must expressly state that the term “communications provider” does not include libraries, or it is unlikely to be respected by the Department of Justice. Past efforts to protect libraries from federal demands for information without court supervision failed because they did not include explicit statutory language. For example, Congress included in the Patriot Act Reauthorization clear statements in the Congressional Record, explaining new statutory language, that under the amended Patriot Act libraries do “not fall under the purview of the NSL provision”; nevertheless, the FBI still contends that libraries remain subject to that Act’s National Security Letter provisions.

We propose the following language as a means to resolve our concern, the addition of a single caveat to Section 105B: “For purposes of this section, the term “communications provider” does not include a library (as that term is defined in section 213(1) of the Library Services and Technology Act (20 U.S.C. 9122(1)). We note that the issue is not likely to arise so often that obtaining FISA court approval would impose reasonable burdens on or create obstructions to terrorism or foreign intelligence investigations.

We very much appreciate your consideration of this request and would be happy to provide additional information.

About Jacob Roberts

Jacob Roberts is the communications specialist for the ALA Washington Office.

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