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New legislation protecting reader privacy helps safeguard access to information

(PEN/IFEX) - The following is a 25 September 2007 PEN American Centre press release:

Reader Privacy Advocates Applaud Introduction of NSL Reform Act

Washington, DC, September 25, 2007-The Campaign for Reader Privacy, a coalition of organizations representing librarians, booksellers, publishers, and authors, cheered the introduction on 25 September 2007 of legislation to safeguard the privacy of ordinary Americans and curb the FBI's abuse of the National Security Letter power granted under the USA Patriot Act.

National Security Letters (NSL) are administrative subpoenas which are issued by FBI field agents with no judicial oversight and which give the government virtually unlimited access to electronic communications transactions records, including those of Internet service providers and public libraries. Recipients of NSLs are bound to perpetual silence by a gag order.

The bipartisan National Security Letter Reform Act of 2007, introduced by Senators Russ Feingold (D-WI), John Sununu (R-NH), Dick Durbin (R-IL), Lisa Murkowski (R-AK), Ken Salazar (D-CO), and Chuck Hagel (R-NE), is a response to a report by the inspector general of the Department of Justice documenting widespread misuse of NSLs and to two federal court decisions striking down the NSL provisions of the Patriot Act as unconstitutional.

Passage of the USA Patriot Act gave the FBI virtually unchecked authority to issue these administrative subpoenas without oversight, and the Inspector General's March 2007 report confirmed that the number of NSLs issued by the FBI has skyrocketed, with more than 140,000 requests for information served between 2003 and 2005, and that more than 1,000, and perhaps many thousands, of those requests potentially violated laws or agency rules. Earlier this month, U.S. District Court Judge Victor Marrero ruled for the second time that the NSL's gag provision and lack of judicial review violated the First and Fourth Amendments to the Constitution, noting that changes which Congress made last year had failed to correct the fundamental flaws.

The NSL Reform Act would correct many of these flaws. Among other things, it would require the government to make an individualized determination that each record sought with an NSL relates to someone with a connection to terrorism or espionage, and it would place a time limit on the gag order (which could be extended by the courts, if necessary). Significantly, the legislation would also establish an individualized standard of suspicion for Patriot Act "Section 215" orders, which allow the FBI to seize any business records, including library circulation and bookstore transaction records, merely by telling a secret FISA [Foreign Intelligence Surveillance Act] court that the records are "relevant" to an investigation.

Former Congresswoman Pat Schroeder, president and chief executive officer of the Association of American Publishers, said: "When Congress reauthorized the Patriot Act they failed to provide the single most important safeguard we sought: a requirement that in order for the FBI to seize sensitive records, including those of libraries and bookstores, the government would have to show a connection with a suspected terrorist or spy. We're deeply grateful to Senators Feingold, Sununu, Durbin, Murkowski, Salazar, and Hagel for introducing legislation to restore this and other important safeguards, and urge other Senators to become co-sponsors. We intend to lobby hard for its passage."

Loriene Roy, president of the American Library Association (ALA), said: "ALA has urged reforms to National Security Letters from the get-go. Law enforcement is extremely important, but those efforts must be balanced against Americans' right to privacy, in our case for their library and Internet usage records. The NSL Reform Act addresses these very issues."

"A federal court has twice ruled that the Patriot Act NSLs are both unconstitutional and an open invitation to abuse, and the Justice Department's own Inspector General's report left no doubt that widespread abuses of these powers have been occurring," said Larry Siems, director of Freedom to Write and International Programs at PEN American Center. "There is no excuse for delay: Congress should move quickly to pass the National Security Letter Reform Act."

The Campaign for Reader Privacy was organized in 2004 by the American Booksellers Association, the ALA, the Association of American Publishers, and PEN American Center to fight for changes in the Patriot Act to protect the confidentiality of reading records of law-abiding Americans. The Campaign has been pressing Congress to establish an individualized standard of suspicion and to make it easier for librarians and booksellers to challenge NSL and Section 215 orders in court and limit the length and scope of the accompanying gag orders.

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