Federal Bills Revisit NSLs, Digital Privacy
With the Patriot Act due to sunset at the end of 2009, Congress is considering several bills that would collectively impact the ability of law enforcement to access, amass, and warehouse digital data about the activities of private citizens.
Rep. Jerrold Nadler (D-N.Y.) and Jeff Flake (R-Ariz.) introduced March 30 the National Security Letters Reform Act of 2009, which would limit the issuance of an NSL to cases in which the FBI attests that “specific and articulable facts” point toward the target of the investigation being a “foreign power or agent of a foreign power.” H.R. 1800 (PDF file) would also require judicial approval for the extension of an NSL gag order beyond its initial 30-day scope; compel the Justice Department to obey minimization requirements by destroying data collected through an NSL that was wrongly obtained; and give those who were investigated erroneously the right to sue the issuer of the NSL for up to $50,000.
The thrust of H.R. 1800 is similar to an identically named bill Nadler sponsored in 2007, which garnered praise at its introduction from Emily Sheketoff, executive director of the American Library Association’s Washington Office. Caroline Fredrickson of the American Civil Liberties Union said March 30 of the 2009 legislation that its enactment would “realign the current NSL authority with the Constitution.”
The use of NSLs to surreptitiously obtain patron records has been of concern to library groups since the Patriot Act became law in 2001 some six weeks after the September 11 terrorist attacks. Since it was enacted, the use of NSLs to access patrons records has been challenged in court by the Connecticut consortium Library Connection and the Internet Archive. In both cases, the FBI withdrew the NSL.
H.R. 1800 has been referred to the committees on the Judiciary and Financial Services.
A month earlier, lawmakers in both the House and the Senate introduced legislation that, although unrelated to the NSL Reform Act, could exponentially swell the amount of data from which federal agencies could seek information. The Internet Safety Act (or, Internet Stopping Adults Facilitating the Exploitation of Today’s Youth Act) would require that all Wi-Fi providers and end users, including libraries, to “retain for a period of at least two years all records or other information pertaining to the identity of a user of a temporarily assigned network address the service assigns to that user.”
Rep. Lamar Smith (R-Tex.), who cosponsored H.R. 1076 (PDF file), wrote in a February 19 guest editorial in the Dallas Morning News that he and Sen. John Cornyn (R-Tex.), who introduced the identical Senate companion bill S. 436 (PDF file) sponsored the legislation to “help law enforcement officials identify who is uploading, viewing, and distributing explicit child pornography.” Smith also explained that privacy proponents should not be concerned because the legislation would “simply allow [the government] to match the IP address of a suspect to an individual” just as phone companies do with telephone numbers.
Both versions of the Internet Safety Act have been referred to the respective congressional Judiciary Committee.
“The retained records would be available not only for child porn investigations, but for all types and kinds of investigations, including private civil lawsuits seeking information about users who post anonymous comments or who are suspected of violating copyright,” cautioned Deborah Caldwell-Stone, deputy director of ALA’s Office for Intellectual Freedom, noting that “the ability to read and publish anonymously, without fear of government surveillance, is the foundation of our First Amendment right of free expression.”
Posted on April 3, 2009. Discuss.