Call for ECPA Reform Puts Pressure on SEC

April 11, 2014

By Elizabeth Holland

With the House proposal to update the 1986 Electronic Communications Privacy Act (ECPA) garnering 200 co-sponsors this week, the members of the Digital Fourth coalition — the ACLU, Heritage Action, Americans for Tax Reform, and the Center for Democracy & Technology — sent a letter to the Securities & Exchange Commission (SEC) calling out the agency’s “contradictory or misleading statements” about its work to oppose the popular proposed reform. The SEC has been a vocal opponent of bipartisan legislation (H.R. 1852, S. 607) that would reform ECPA to establish a search warrant requirement for the government to obtain the content of Americans’ emails when those communications are stored with a third-party service provider for more than 180 days.  While this legislation has gained broad bipartisan support in both chambers, the SEC has dragged its feet, claiming an update would interfere with the way it conducts investigations.

In the letter, sent to the commission on Wednesday, Digital Fourth proposed an amendment developed with the lead sponsor of the bill, Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.), to assuage these concerns and implored the SEC to compromise. The amendment would assure that “ECPA cannot be used to shield data in the cloud from ordinary discovery techniques” by allowing the SEC and other regulators to use a subpoena to obtain information held by third-party service providers during the course of an investigation.

AALL strongly supports these proposed reforms to ECPA, which ensure important protections to the privacy of library users. As a member of the Digital Due Process coalition, we advocate for reform that would balance the government’s interest in protecting national security with the protections of privacy and freedom from government surveillance the Constitution requires. As such, we echo the call to the SEC to back these widely-supported commonsense reforms and urge Congress to enact ECPA reform this year.


Progress Report: Checking in on Federal Legislative Priorities

February 21, 2014

By Elizabeth Holland

The House and Senate were on recess this week, but there have been several updates to our 113th Congress Bill Tracking Chart recently. Here’s where we’ve seen progress on AALL’s federal legislative priorities:

  • As we reported in this month’s Washington E-Bulletin, legislation has been introduced to restore the Federal Communications Commission’s (FCC) net neutrality rules. The Open Internet Preservation Act (H.R. 3982, S.1981) has gained 27 co-sponsors in the House and 6 co-sponsors in the Senate since its early February introduction. This week, Chairman Tom Wheeler said the FCC will propose new net neutrality rules in the late spring or early summer, after soliciting public comment.
  • With Sunshine Week just around the corner, open government advocates in Congress will use the coming weeks as an opportunity to highlight legislation on oversight and transparency. As such, AALL has renewed its push on ACMRA, the Access to Congressionally Mandated Reports Act (H.R. 1380), joining a broad coalition of organizations on a letter calling on House leadership to consider the bipartisan bill at the earliest opportunity.
  • Thanks to the successful The Day We Fight Back campaign, the USA FREEDOM Act (H.R. 3361, S. 1599) has gained significant sponsorship in the House and Senate. Both chambers’ Judiciary Committees, which have jurisdiction over the bills, held hearings related to NSA surveillance reform this month, though the leadership of both committees appear to be waiting for a clear signal from the administration before moving forward.
  • Last but not least is a new addition to our chart: AALL supports the recently introduced Senate bill to rename the Government Printing Office to the Government Publishing Office, the Government Publishing Office Act of 2014 (S. 1947). The bill has been referred to the Committee on Rules and Administration.

As Congress returns to work, expect to see more updates to our bill tracking chart in the coming days and weeks. We also encourage you to check out the newly updated Congress.gov, which got some great new features and improvements this week.  An Advanced Search and Browse feature are now available and the Appropriations Table from THOMAS has returned.


Take Action: The Day We Fight Back Against Mass Surveillance

February 11, 2014

By Elizabeth Holland

Today, we join thousands of companies, organizations, and websites in The Day We Fight Back, a day of protest and action against NSA surveillance.  AALL members are encouraged to take action in support of the USA FREEDOM Act (S.1599, H.R.3361), a bipartisan bill that would limit government spying authority and begin to restore our privacy and rights under the Constitution.

In response to the recent and ongoing revelations that government surveillance of Americans under the Foreign Intelligence Surveillance Act (FISA) has been far broader than generally understood, the USA FREEDOM Act would legislatively clarify the limits on the collection and use of Americans’ information. The bill would help restore confidence in the intelligence community by amending the USA PATRIOT Act and FISA Amendments Act of 2008 to better protect Americans’ privacy and require greater oversight, transparency, and accountability with respect to domestic surveillance authorities.

AALL believes the government has a responsibility to protect the privacy of library users and calls for effective oversight of those laws which expand surveillance on library users. We urge Congress to take action in support of the USA Freedom Act to provide meaningful reform.

Have 5 minutes to spare? Using our Legislative Action Center, you can easily urge your members of Congress to co-sponsor the USA FREEDOM Act by sending a customized message to their offices and fight back against mass surveillance.


AALL Endorses USA FREEDOM Act

October 29, 2013

By Elizabeth Holland, AALL Public Policy Associate

Today, Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) and Congressman Jim Sensenbrenner (R-Wisc.), chairman of the House Judiciary Crime and Terrorism Subcommittee, introduced legislation that seeks to significantly limit the collection and use of Americans’ information under our nation’s domestic surveillance authorities. The Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet Collection, and Online Monitoring Act, or “USA FREEDOM Act”, would amend the USA PATRIOT Act and FISA Amendments Act of 2008 to better protect Americans’ privacy and require greater oversight, transparency, and accountability with respect to domestic surveillance authorities. AALL has joined more than 20 diverse organizations in endorsing this legislation.

The USA FREEDOM Act reins in the collection of Americans’ records by raising the standard for collection of items pursuant to Section 215 of the Patriot Act.  The bill requires that the tangible things sought are relevant and material to an authorized investigation into international terrorism or clandestine intelligence activities, and pertain to: (1) a foreign power or agent of a foreign power; (2) the activities of a suspected agent of a foreign power who is the subject of an investigation; or (3) an individual in contact with, or known to, a suspected agent of a foreign power. This reform would extend not only to phone records, but also to financial records, location data, medical records, credit card data, and other information the government may attempt to gather in bulk for intelligence purposes. Further, this legislation would raise the standard for collection under National Security Letter statutes and the Pen Register/Trap and Trace to prevent the government from shifting bulk collection to another authority.

The USA FREEDOM Act also seeks to protect Americans’ communication collected under the FISA Amendments Act of 2008. The bill closes the National Security Agency’s “back door” access to Americans’ communications by requiring a court order to search for the communications of Americans in data collected without individualized warrants under Section 702 of FISA.  The bill also imposes other safeguards on activities conducted under Section 702, including strengthening the prohibition on “reverse targeting” of Americans (targeting a foreigner with the goal of obtaining communications involving an American). Under the bill, the scheduled expiration of the FISA Amendments Act is moved from 2017 to 2015 to align it with the next Patriot Act reauthorization.

Additionally, the USA FREEDOM Act also contains important provisions to improve oversight, transparency, and accountability with respect to the NSA’s surveillance programs. If passed, the legislation will create the Office of the Special Advocate, appointed by the Privacy and Civil Liberties Oversight Board (PCLOB), which would promote privacy interests before the Foreign Intelligence Surveillance Court (FISC). The bill requires the Attorney General to disclose, or write summaries for, all significant FISC decisions written since 2003. The bill addresses the problem of “secret law” by establishing a process for public release of FISC opinions containing significant legal interpretations. The bill also would require the government to provide new public reporting on FISA implementation. Specifically, the government would be required to make public reports estimating the total number of individuals and U.S. persons who were subject to various types of FISA orders and whose information was reviewed by federal agents.  The bill enhances oversight by requiring Inspector General audits on the use of Section 215 orders, National Security Letters, and other surveillance authorities under the Patriot Act, as well as a comprehensive review of Section 702 surveillance by the Inspector General of the Intelligence Community.

AALL believes that the government has a responsibility to protect the privacy of library users and we oppose any current or future legislation, regulation, or guideline that erodes the privacy and confidentiality of library users or that has the effect of suppressing the free and open exchange of ideas and information. AALL believes that there must be effective oversight of current law that expands surveillance on library users. We urge Congress enact the USA FREEDOM Act to provide effective oversight of expanding surveillance on library users and amend provisions of the Patriot Act and other legislation, regulations, and guidelines that threaten the rights of inquiry and free expression.

The USA FREEDOM Act has more than 70 cosponsors in the House and Senate and enjoys broad bipartisan support. Visit our Legislative Action Center to urge your members of Congress to support this important reform.


Senators Call for Declassification of FISA Court Opinions

June 11, 2013

By Elizabeth Holland,  Public Policy Associate

A bipartisan group of eight senators has introduced legislation to require the Attorney General to declassify Foreign Intelligence Surveillance Court opinions governing controversial government surveillance programs. In light of the recent revelation of the National Security Agency’s secret data collection programs, the bill aims for greater transparency of the legal authority claimed for surveillance under the USA PATRIOT Act and Foreign Intelligence Surveillance Act (FISA).

The Foreign Intelligence Surveillance Court (FISC) is a special U.S. federal court charged with overseeing requests by federal law enforcement agencies for surveillance warrants within the United States. FISC is a “secret court” and its rulings and orders are highly classified. The proposed legislation would unseal some classified opinions by the court that authorized requests for surveillance. If a FISC opinion cannot be declassified without undermining national security interests, the Attorney General can instead release a declassified summary of the opinion or provide a report to Congress describing the surveillance that would be implemented.

Sponsors of the bill include several key privacy advocates, including Senators Jeff Merkley (D-Ore.), Mike Lee (R-Utah), Patrick Leahy (D-Vt.), Dean Heller (R-Nev.), Mark Begich (D-Alaska), Al Franken (D-Minn.), Jon Tester (D-Mont.), and Ron Wyden (D-Ore.). Senators Merkley and Lee introduced the same bill as an amendment to FISA’s five-year extension in December 2012, but were defeated 37-54. Had it passed, the amendment would have covered the declassification of rulings related to the provisions used to authorize the controversial Verizon telephone records collection and PRISM program.

AALL has long called for stronger oversight and transparency of government surveillance programs that monitor public communications, having opposed the extension of the FISA Amendments Act and changes to FISA under the USA PATRIOT Act, which permitted government surveillance in criminal investigations without a showing of probable cause.

As reported by The Nation and Albany Tribune, AALL strongly supports this important bill, which has also been endorsed the New York Times and numerous open government groups, including OpenTheGovernment.org, of which AALL is a founding member.


Sunshine Week in Review

March 19, 2013

By Elizabeth

As Emily recently shared, last week marked the ninth annual Sunshine Week, a time to reflect on the state of public access to government information and work together to make our government more transparent. In addition to the release of two new reports to which AALL contributed, we were busy celebrating Sunshine Week at events across Washington, DC.  Read on for event recaps and a few exciting legislative developments.

On Wednesday, the Senate Judiciary Committee held a hearing entitled “We the People: Fulfilling the Promise of Open Government Five Years After the OPEN Government Act.” Under the leadership of Chair Senator Patrick Leahy (D-VT) and Ranking Member Senator Chuck Grassley (R-IA), the committee expressed frustration with federal agencies’ inability to comply with a 2007 open government law that Congress enacted to accelerate processing of Freedom of Information Act (FOIA) requests. On the first of two panels, witnesses included Miriam Nisbet, Director the Office of Government Information Services, which was created by the OPEN Government Act, and Melanie Pustay, Director of the Office of Information Policy at the Department of Justice. On the second panel, consisting of open government advocates, speakers charged Pustay with exaggerating the progress of the Obama administration. While agencies have improved the processing of FOIA requests by reducing average processing times and cutting down on the backlog of requests, the information available to requestors is still unsatisfactory. Full releases of documents declined to the lowest level on record in 2012, while 52 out of 99 federal agencies have not changed their freedom of information regulations to meet the requirements of the OPEN Government Act of 2007. The Justice Department has been particularly problematic, testified Thomas Blanton, director of the National Security Archive at George Washington University. Pustay contended the new regulations were optional.

At the same time as the Senate hearing, the House Committee on Oversight and Government Reform hosted its Sunshine Week event, a hearing entitled “Addressing Transparency in the Federal Bureaucracy: Moving Toward A More Open Government.” Committee Chair Representative Darrell Issa (R-CA) and Ranking Member Elijah Cummings (D-MO) used Sunshine Week as the impetus for introducing draft legislation to amend FOIA.  The draft bill, which AALL supports, is ”designed to strengthen transparency by ensuring that legislative and executive action to improve FOIA over the past two decades is fully implemented by federal agencies,” said Rep. Issa.

Representative Wm. Lacy Clay (D-MO) also reintroduced legislation on Wednesday aimed at enhancing transparency. H.R. 1104, the Federal Advisory Committee Act Amendments of 2013, would strengthen the Federal Advisory Committee Act (FACA), landmark legislation authored by Rep. Clay, Rep. Cummings, and Rep. Gerald Connolly (D-VA). “This bill opens up the Federal Advisory Committee selection and oversight process by providing greater transparency and ensuring real independence for appointees,” said Rep.  Clay.  “The act also imposes much tougher standards to ensure that committee members are insulated from political pressure to influence their recommendations.  Finally, my act would require any FACA appointee selected by the President or an agency to provide expert advice to fully comply with all conflict of interest rules and federal ethics laws.”

Other Sunshine Week events included a timely panel discussion on secrecy, security, and classification reform, hosted by the Brennan Center for Justice. Panelists heard from Public Interest Declassification Board (PIDB) Chair Nancy Soderberg on the PIDB’s recommendations for a classification system overhaul and responded to the proposals. The issue of how the US government treats state secrets has gained much attention in recent weeks as the White House has come under intense pressure to make public OLC memos on the targeted drone program—in part thanks to a 13-hour filibuster by Senator Rand Paul (R-KY).

We concluded Sunshine Week by co-sponsoring the annual National Freedom of Information Day conference at the Newseum, which brought together groups concerned with freedom of information and open records, including FOI advocates, government officials, lawyers, librarians, journalists and educators. This year’s program invited members of the Obama administration to engage in conversation with open government advocates over the progress seen in the President’s first term. The late internet activist Aaron Swartz was this year’s recipient of the ALA James Madison Award, while winners of Sunshine in Government Award included Senator Ron Wyden (D-OR) for his commitment to openness and transparency, and Environmental Protection Agency employees Tim Crawford and Larry Gottesman, who created FOIAOnline.


House Approves Legislative Branch Appropriations Bill While Leadership Prioritizes Bulk Access

June 8, 2012

The House of Representatives approved the Legislative Branch Appropriations Act for Fiscal Year 2013 (H.R. 5882) today by a vote of 307-102. The bill spends $3.3 billion overall, about $33 million below the FY 2012 level and $190 million below the requested level.

Under the bill, the Library of Congress receives $592.6 million, an increase of $5.3 million above the FY 2012 enacted level and $10.9 million below the requested level. The bill allocates $122.6 million for the Government Printing Office (GPO), $3.6 million below the FY 2012 enacted level and $3.6 million below the requested level. GPO’s request for Congressional Printing and Binding and the Salaries and Expenses of the Superintendent of Documents is fully funded by the bill.  The bill cuts GPO’s Revolving Fund to about $4.1 million, $3.75 million below the requested level. However, in a message on the FDLP Desktop, Superintendent of Documents Mary Alice Baish assured readers that GPO has sufficient funding to continue the development of FDsys, including improving the search engine and digitizing the permanent edition of the Congressional Record.

After much attention was given to the subcommittee’s appropriations report language about access to bulk legislative data, the House’s leadership issued a statement adopting the goal of “provid[ing] bulk access to legislative information to the American people without further delay.” In the statement, Speaker John Boehner R-OH-08), Majority Leader Cantor (R-VA-07), Legislative Branch Appropriations Subcommittee Chairman Crenshaw (R-FL-04), and Oversight and Government Reform Committee Chairman Issa (R-CA-49) direct the creation of a task force to expedite the process of making XML information available to the public. The task force will include representatives from the Library of Congress and the Government Printing Office, House leadership and key committees, the Clerk of the House, and the House Chief Administrative Officer. The leadership writes: “Because this effort ranks among our top priorities in the 112th Congress, we will not wait for enactment of a Legislative Branch appropriations bill but will instead direct the task force to begin its important work immediately.”

As the House moves forward with the release of bulk access to legislative data, AALL will continue to work to support efforts to ensure that the data is timely, accurate, and trustworthy.


Senate Judiciary Committee Approves Chairman Leahy’s PATRIOT Act Extensions

March 11, 2011

Thanks to your calls and emails in response to our action alert, the Senate Judiciary Committee yesterday approved the USA PATRIOT Act Sunset Extension Act of 2011 (S. 193) by a vote of 10-7.

S. 193, introduced in January by Judiciary Committee Chairman Patrick Leahy (D-VT), would extend the three provisions now set to expire on May 27, 2011 until 2013. AALL strongly supports this bill because it would raise the standard for Section 215 orders by requiring the government to show that the tangible things sought are relevant to an authorized investigation and connected to a suspected agent of a foreign power. The bill also includes a December 2013 sunset on National Security Letters.

On February 14, 2011, AALL, the Medical Library Association and the Special Libraries Association sent a letter to Chairman Leahy in support of the bill.


Congress Passes Harman Bill to Reduce Overclassification

September 29, 2010

Earlier this week, the House and Senate voted to approve the Reducing Over-Classification Act (H.R. 553), introduced in January 2009 by Rep. Jane Harman (D-CA-36) and amended by Sen. Joe Lieberman (ID-CT). The bill, as amended, includes the following requirements to reduce overclassification in the Federal government:

  • The Secretary of the Department of Homeland Security must designate a “Classified Information Advisory Officer” to improve information sharing with state, local, tribal and private sector entities that have responsibility for the security of critical infrastructure.
  • Inspectors general of departments which classify information must work with the Information Security Oversight Office to carry out at least two evaluations by 2016 to assess their department’s classification policies, procedures, rules and regulations.
  • The heads of departments which classify information must institute annual training for each employee who has original classification authority.

According to AALL’s Government Relations Policy, “Statutes and regulations governing security classification should be construed to promote open government while acknowledging the need for FOIA exemptions.” AALL strongly supports H.R. 553 and we are pleased with its passage. For more information about current classification policy in the Federal government, please read our Issue Brief.

[Posted by Emily Feldman]


Sen. Jeff Sessions Blocks Important Bill to Increase Access to Presidential Records

June 16, 2010

As the Senate Judiciary Committee prepares for the June 28 nomination hearing of Elena Kagan to the U.S. Supreme Court, Ranking Member Jeff Sessions (R-AL) has been outspoken about what he considers to be the slow release of records from the Clinton Library to the committee. Ironically, Sen. Sessions has put a hold on the Presidential Records Act Amendments of 2009 (H.R. 35) that would help to avoid such delays in the future by ensuring the timely release of presidential records to the public.

The release of presidential records is governed by the Presidential Records Act (PRA) of 1978, as amended by Executive Order (E.O.) 12667, which establishes that the public records of our presidents are government property and therefore belong to the American people. Unfortunately, the PRA has been weakened over the years by presidents who wish to keep their records out of public reach.

In 2001, President Bush issued E.O. 13233 granting an incumbent or former president veto power over any public release of materials by the Archivist even after the expiration of the required 12-year withholding period. This executive order was in clear opposition to the intent of the 1978 law, and AALL immediately joined other open government groups in supporting legislative efforts to overturn it. We were pleased when, on his first full day in office, President Obama issued E.O. 13489 to revoke President Bush’s executive order and establish a stronger standard for public access.

AALL supports the Presidential Records Act Amendments of 2009 because it would ensure that the important openness provisions of President Obama’s executive order become law. The bill would establish reasonable standards for the release of presidential records and restore the balance between a president’s ability to withhold certain records for a limited time period and the public’s right to access them.

The House passed H.R. 35 on January 7, 2009 by an overwhelming vote of 359-58. The Senate Committee on Homeland Security and Governmental Affairs reported the bill favorably on April 1, 2009 with an amendment that extends the amount of time an incumbent and former president may review their records before release.

Kagan served as Associate Counsel to President Clinton from 1995 to 1996 and as Deputy Assistant to the President for Domestic Policy and Deputy Director of the Domestic Policy Council from 1997 to 1999. It’s unfortunate that Sen. Sessions doesn’t recognize that the important piece of legislation he is holding from a floor vote would address his concerns about the delays in getting access to Clinton-era presidential records. We urge him to immediately lift his hold.

To learn more about the history and status of public access to presidential records, please read our Issue Brief.

[Posted by Emily Feldman]


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