Public Affairs Committee
Report on Significant Developments
November 19, 2003
Joanne C. Kiley
Margaret A. Schilt
Keith Ann Stiverson
Spencer Simons – Chair
Julia Wentz- Liaison
USA PATRIOT Act Update – November, 2003
Public and congressional concern
about the operation of provisions of the USA PATRIOT Act has produced
both legislative and judicial action in the past five months.
1. ACLU et al
v Department of Justice, U.S. District Court for the District Columbia
Case No. 1:02-cv-02077-ESH.
In a Memorandum Opinion issued
May 19, 2003, the Court granted the
Defendant’s motion for summary judgment, holding that the DOJ properly
invoked FOIA Exemption 1, which permits the withholding of information
specifically authorized by an executive order to be kept secret in the
interests of national defense or foreign policy. The Court “…concludes
that defendant’s explanation of why it has withheld aggregate statistical
information revealing the number of times it used particular Patriot Act
surveillance and search tools is sufficiently detailed and persuasive
to satisfy the standards for protecting agency records pursuant to FOIA
Exemption 1.” (pg. 33)
2. Muslim Community
Association of Ann Arbor et al v John Ashcroft et al, U.S. District
Court for the E. D. Mich. S.D. Case No. 03-72913.
The ACLU in association with
six Arab-American groups has filed the first
case directly challenging the constitutionality of the USA PATRIOT Act,
alleging that Section 215 of the Act (the provision giving the FBI expanded
powers to obtain records and “other tangible things” from entities including
libraries) compromises rights of privacy, free speech and due process.
The suit was filed on July 30, 2003. Defendants have filed a Motion to
Dismiss which is scheduled for hearing on December 3, 2003. Amicus briefs
are being filed by the NAACP, Asian-American Legal Defense and Education
Fund and the Japanese American Citizens League.
3. H.R. 2799 Amendments
to FY 2004 appropriations bill for Commerce, Justice, state and the
H.R. 2800, Amendments to FY 2004 Foreign Operations
On Thursday, November 13,
2003, Mary Alice Baish, Associate Washington Affairs Representative of
AALL, sent out an action alert, asking for support to urge House members
to sign a letter to the conferees of the FY 2004 Commerce, Justice, State
appropriations bill or an omnibus appropriations bill. The letter asks
the conferees to accept amendments to both of these bills, approved in
the House on July of this year. The amendment to H.R. 2799 would bar law
enforcement from spending any funds for “sneak and peek” searches under
Sec. 213 of the USA PATRIOT Act unless the targets are told in advance.
The amendment to H.R. 2800 would prevent funds to be used for searches
of libraries or bookstores under Section 215 of the USA PATRIOT Act. In
the alternative, the letter asks that conferees incorporate language drawn
from the proposed SAFE Act (see below) to accomplish the same goals.
4. Security and Freedom
Ensured Act of 2003 (“SAFE Act”) (S. 1709)
The SAFE Act was introduced
in the Senate on October 2, 2003. The
Act provides for privacy protections for library, bookseller and other
personal records under the Foreign Intelligence Surveillance Act of 1978,
as amended by the USA PATRIOT Act; provides that a library shall not be
treated as a wire or electronic communication service provider for purposes
of that Act; and strengthens the Congressional oversight provisions. It
has been referred to the Judiciary Committee.
5. Benjamin Franklin
True Patriot Act (H.R. 3171)
The Benjamin Franklin True
Patriot Act was introduced in the House by
Dennis Kucinich (D-OH) on September 24, 2003. The Act provides that 11
sections of the USA PATRIOT Act (including, inter alia, Section 213 relating
to “sneak and peek” searches and Section 215 relating to the seizure of
business records), 2 sections of Homeland Security Act of 2002, certain
immigration regulation provisions, attorney-client monitoring pursuant
to 66 FR 55063, secrecy orders under Attorney General Ashcroft’s memorandum
of October 12, 2001, and any actions of Attorney General Ashcroft amending
the Thornburgh Guidelines of 1989, shall all cease to have any effect
within 90 days of the date of enactment of the Act, unless removed from
the list pursuant to hearings held by Congress at the request of the President.
The bill was referred to House Committees on Education and the Workforce,
Government Reform, the Judiciary, Transportation and Infrastructure, and
the Select Committee on Intelligence.
6. Protecting the
Rights of Individuals Act (S. 1552)
This Act was introduced by
Lisa Murkowski (R-AK) on July 31, 2003. It
would amend the USA PATRIOT Act to strengthen protections of civil liberties
in the exercise of foreign intelligence surveillance. In particular, it
would amend Section 215 of the PATRIOT Act to require that an application
for a foreign intelligence surveillance order for seizure of records state
the facts and circumstances relied upon to justify the belief that the
person to whom the requested records pertain is a foreign power or an
agent of a foreign power and, in the case of library and medical records,
to state that there is probable cause to believe that the person is a
foreign power or agent. The bill was referred to the Judiciary Committee.
Further information on these
issues and current opinion about the USA PATRIOT Act can be found in an
extensive report from the Lawyers Committee for Human Rights. See “Assessing
the New Normal: Liberty and Security for the Post-September 11 United
States,” available on the web at http://www.lchr.org/us_law/loss/assessing/assessingnewnormal.htm
Updates on Previously Reported Pending Legislation
The Digital Media Consumers’
Rights Act of 2003 (the DMCRA or “Boucher Bill”)
H.R. 107 (described more fully in the May report) would empower the Federal
Trade Commission to ensure adequate labeling on non-standard or copy protected
compact disks, which are a burden to consumers; it also would help ensure
that fair use protections remain in place in the digital environment.
Current status: There are now 14 co-sponsors, and one Member of the House
has withdrawn his co-sponsorship. The bill is not expected to go anywhere
this time around.
(Contact: Keith Ann Stiverson)
H.R. 3261, the Database and
Collections of Information Misappropriation Act, was introduced October
8, 2003, and referred to the House Judiciary Committee’s Subcommittee
on Courts, the Internet, and Intellectual Property. The Subcommittee held
a mark-up session on October 16, amended the bill, and forwarded the legislation
to the full committee. The amended text is not yet available.
Congress has attempted to pass database protection legislation since 1996,
and the library associations and others have opposed such legislation
as unnecessary and contrary to the principle that mere facts cannot be
protected, only works with some originality.
(Contact: Keith Ann Stiverson)
Last August at its annual meeting,
the National Conference of Commissioners on Uniform State Laws (NCCUSL)
discharged the standby committee of the Uniform Computer Information Transactions
Act (UCITA), noting the strong opposition from consumer groups, insurance
companies, libraries, and their allies. What this means is that we have
scored a major victory in the effort to keep UCITA from becoming law in
more states. Nevertheless, UCITA is the law in both Maryland and Virginia,
and it is still possible that this proposed uniform law could be considered
in other states. There has been no recent movement to introduce the measure
in Illinois that we could discover, but if you hear something to the contrary,
please contact Keith Ann Stiverson (firstname.lastname@example.org) of the Public
GPO & OMB Reach Compromise This Summer
In early 2002 OMB Director
Mitch Daniels created a confrontation with GPO by trying to use regulations
to challenge its legal role as the government’s printing facility. This
past June he and the newly appointed Public Printer , Bruce James, agreed
on a new arrangement for doing the government’s printing within the existing
provisions of Title 44. The compact maintains GPO’s central role but also
provides the flexibility and direct input that Daniels and some agencies
had been seeking.
By not trying to circumvent
GPO, the arrangement continues the expertise and efficiencies of the GPO’s
procurement process. GPO will still qualify and register the private sector
printers. But the agencies will be able to choose from these and be able
to negotiate directly with them over issues of specifications and performance.
The agencies will also get a reduction in GPO’s mandatory fee from 7%
to 3%. That will be for minimal services only. Other services will be
for an additional charge. Payments to printers will go through GPO, but
agencies will be able to approve the payments before they are made. OMB
will curtail the use of in-house printing facilities by agencies to insure
that the new system is used.
One of the most significant
provisions for GPO is the requirement that each vendor provide GPO with
an electronic version and two print copies of each publication procured.
Since this is a condition of payment, GPO effectively gets to enforce
these submissions. This should help greatly with the many documents that
have not been included in the federal depository program. However, the
costs of additional copies for distribution will be borne by GPO. Since
these submissions are for physically printed documents, it still leaves
open the question of what happens to agency publications that are only
created in electronic format. What guidelines will apply to these?
The new arrangement will be
carried out as a demonstration project during FY2004 to identify any bugs
and to refine the process. Full government-wide deployment is scheduled
for FY 2005. In the meantime, the OMB and GPO will work with the FAR Council
to develop the regulations needed to carry out this new agreement.
Given the confrontational mood
that had prevailed earlier, this compromise that seems to have satisfied
OMB, GPO, the library community and the printing industry, is a surprising
but heartening outcome.
GPO and OMB Reach Innovative New Solution for Federal Printing
GPO and OMB Compromise on Agency
Printing More Information at a Lower Cost?
By Miriam A. Drake
The OMB-GPO Compact: A new
era in government print procurement
Fred Antoun, PIA Counsel for Government Printing and Information Issues
Illinois Administrative Code – New Codification Effort Canceled
Last Spring we reported on
the standoff over the codification of the administrative regulations of
the State of Illinois. This standoff has now been resolved: the plans
the Secretary of State’s Index Department for a totally new codification
of the state administrative regulations in a new organizational scheme
(ILAC) have been canceled and the production of the Illinois Administrative
Code (Ill.Ad.Code) by the Illinois General Assembly’s Joint Committee
on Administrative Rules (JCAR) will continue. The Secretary of State has
also returned the maintenance of the database for the Illinois Register
to JCAR (the Secretary of State’s Index Office had assumed responsibility
for the Illinois Register from JCAR about a year ago).
Background: 5 Ill.Comp.Stat.Ann.
100/5-80(h) (West Supp. 2003) states that the official compilation of
the regulations of Illinois are those prepared by the Secretary of State.
In 1998 the Secretary of State published in the Illinois Register a notice
of its intent to recodify the administrative regulations into a new scheme,
to be called ILAC, 22 Ill.Reg. 11532 (1998), pursuant to its authority
to prescribe a uniform system for codification, 5 Ill.Comp.Stat.Ann 100/5-80(a).
A schedule for this recodification was published in the Illinois Register,
27 Ill.Reg.233 (2003). The Index Office was staffed and preparing to begin
the recodification early this year. An impasse arose between JCAR and
the Index Office over the implementation of the project. By statute, JCAR
must approve any codification, but approval “shall be conditioned only
upon establishing that the proposed codification system and schedule are
compatible with existing electronic data processing equipment and programs
maintained by and for the General Assembly”, 5 Ill.Comp Stat. Ann. 100/5-80(a).
JCAR claimed that the system was not compatible with its existing LIS
system and that it did not have the authorized funding to make it compatible.
The Index Office’s Administrator of the Administrative Code did not agree
with this assessment. When we spoke to representatives of both the Index
Office and JCAR in late spring the Index Office had not been able to begin
its project, while JCAR was continuing to both maintain the Ill.Ad.Code
and to put it on its website.
In a recent call to the Administrator
of the Administrative Code we were informed that the Secretary of State’s
office has relinquished all plans to proceed with ILAC and has turned
over responsibility for publication of any code of Illinois regulations
JCAR does not plan to proceed with the ILAC recodification. The maintenance
of the database of the Illinois Register has also been returned to JCAR.
In summary, the production
of an official compilation by the Secretary of State, although authorized
by statute, will not occur, while the General Assembly’s JCAR will continue
to maintain the Illinois Register and the unofficial, though long-standing
and generally cited, Illinois Administrative Code.
Note: there is now a parallel
(Comparison Index, Illinois Administrative Code to Statutory Authority
showing the statutory authority for each regulation, something the administrative
code has notably lacked in the past. A purpose of ILAC was to make the
statutory authority for administrative regulations clear through a parallel
organization scheme. It appears the parallel authorities table was developed
in response to this conflict over recodification.