Washington Brief

Dateline: September 1, 2005

Reauthorization of the USA Patriot Act
AALL has long been on record as opposing provisions of the USA Patriot Act that erode the privacy and confidentiality of library users, specifically Sections 215 and 505. Sec. 215 gives the government the power to access information from libraries about patron records without probable cause. Sec. 505 allows the FBI to issue a national security letter to compel production of Internet use records from any entity that provides the public with access to the Internet. 16 provisions of the Patriot Act are due to expire at the end of the year, and this summer both the House and Senate passed bills to reauthorize this very controversial law.

Of the two bills, AALL supports the Senate's USA PATRIOT Improvement and Reauthorization Act (S. 1389) because, while not perfect, it does add some safeguards long sought by the library community. It requires that library records sought under Sec. 215 are relevant to an investigation pertaining to a foreign power or agent, rather than to a counterterrorism or counterespionage investigation as is the language in the House version (H.R. 3199). The Senate bill sunsets Sec. 215 in four years, as opposed to the ten year sunset in H.R. 3199. Both bills allow the recipient of a Sec. 215 gag order to challenge the request in U.S. District Court but the Senate bill is stronger in that it adds the condition of violating a constitutional or legal right. Conferees will meet later this month to hash out these and other significant differences between the two bills and we will be working to ensure that the Senate provisions prevail. In addition, we will continue to support additional reforms to improve the Patriot Act, such as the SAFE Act (S. 737/H.R. 1526). If the flawed provisions of the House reauthorization bill, which are supported by the Administration, do emerge from the conference committee this month, we and many other groups on both sides of the political spectrum will strongly oppose it.

Good News and Bad News on 2006 Appropriations
First, the good news. The Legislative Branch Appropriations Act of 2006 (P.L. 109-55) provides the Government Printing Office with a 3% overall increase for FY 2006, including a $1.2 M increase for the Salaries and Expenses that funds the Federal Depository Library Program. In addition, GPO was given $2 M of the $5 M they had requested to retrain their workforce for the digital age. Perhaps most significantly, appropriators also approved GPO's request to use prior year unexpended funds to begin the development of the Future Digital System which until now has been in the planning stage only. Another bit of good news is that Congress restored funding for the National Historical Publications and Records Commission (NHPRC) which had been eliminated in the President's budget. The NHPRC supports a wide range of activities to preserve, publish and encourage the use of documentary sources relating to the history of the United States. While appropriators cut the FY 2005 funding level of $10 M down to $8 M for FY 2006, this was a welcome outcome and the result of a huge lobbying effort by librarians, historians and many other interested groups.

Now, for the bad news. It was a major setback that Congress did not approve the additional $445,000 requested by the Law Library of Congress to cover the first year costs of the "Access to Law Collections" reclassification project. Two years ago, the Library of Congress completed a long-term project to develop the Class K international standard for the classification of legal materials. There are currently 800,000 volumes that are still in the obsolete classification scheme and it is crucially important that the Law Library receive funds to reclassify these holdings to this standard to improve access to the Library's collection.

2005 Secrecy Report Card
OpenTheGovernment.Org—Americans for Less Secrecy, More Democracy will release its Secrecy Report Card 2005 next week. One of the purposes of this annual report is to develop quantitative indicators of increased secrecy in government that we can document over time to use as a benchmark to evaluate openness and secrecy in government. We will also use it as part of our current campaign to raise media and public awareness at a time when government secrecy continues to expand not only in Washington but in state capitols as well. This second annual report documents the excessive secrecy we have witnessed during the past year in startling detail. Among its highlights:

• The Foreign Intelligence Surveillance Court approved 1,754 orders—rejecting none—in 2004 but does not identify the activities being investigated or provide basic information about how the orders are used. In fact, through its history, it has only rejected 4 government requests for surveillance orders.

• The government decided to stamp documents secret a record 15.6 million times in 2004. The U.S. government last year alone spent $7.2 billion securing its classified information. That's more than any annual cost in at least a decade.

• Nearly two-thirds—64%—of the 7,045 meetings of federal advisory committee that fall under the Federal Advisory Committee Act were completely closed to the public in 2004. Others meetings were partially closed.

• In 2004, the public made over 4 million requests for information from government agencies through the Freedom of Information Act, a 25% increase in overall requests from the previous year.

• The "states secrets" privilege that allows the sitting U.S. president to nearly unilaterally withhold documents from the courts, Congress and the public has been used 23 times since 2001. At the height of the Cold War, the administration used the privilege only 4 times between 1953 and 1976.

• At least 62 new state laws expanded secrecy in 2004 while only 38 state laws strengthened open government.

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