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.

October Online Advocacy Training: “Advocating at the State Level: Tips and Tricks for Success”

October 17, 2013

With Congress in a state of gridlock, state governments have recently provided a unique opportunity for law librarians to influence policymaking in their own backyards. From enacting the Uniform Electronic Legal Material Act (UELMA) to fighting proposed budget cuts, law librarians have been on the front lines of some of the most important decisions impacting access to legal information.

Join the AALL Government Relations Office staff on Tuesday, October 29 from 12:00-12:30 pm ET for “Advocating at the State Level: Tips and Tricks for Success.” We’ll offer tips to help you raise the profile and visibility of law libraries in your state. Learn how to build effective coalitions, help introduce  pro-law library bills, and form relationships  in your legislature.

As state budgets rebound from the shortages of the last several years, there are more opportunities to enact a proactive library agenda. Register today to learn how you can help.

This training is complimentary for AALL members and chapter members, but advance registration is required. Sign up online by October 28.

Amid NSA Revelations, 2013 Secrecy Report Casts New Doubts

October 15, 2013

By Elizabeth

OpenTheGovernment.org (OTG) has released the 2013 Secrecy Report, its 9th annual review and analysis of indicators of secrecy in the federal government. With the public and lawmakers alike still reeling from the revelations about the scope of National Security Agency’s (NSA) data collection programs, this year’s report casts new doubt on the accuracy and the meaningfulness of the government’s statistics about surveillance.

In a note prefacing the report, OTG’s Executive Director Patrice McDermott writes: “Our distrust of the government’s reported numbers is focused in four areas: demands for records under Section 215 of the USA PATRIOT Act; the applications made to the Foreign Intelligence Surveillance Court (FISC) under Section 702 of the FISA Amendments Act of 2012; the failure of congressional oversight; and our new understandings of the interactions between the FISC and the intelligence community, and the expanded role of the Court.” As a result, previously included numbers on the use of National Security Letters (NSLs) and the government’s applications to the FISC are not included in this year’s report. Instead, the discussion focuses on the “misdirection in which our government has engaged” and “secret interpretations of law,” which are “as disturbing as the activities they have hidden.”

In response to the misrepresentation and obfuscation of the government intelligence collection programs, OTG outlines several recommendations for administrative action to curb secret law and restore accountability, including the release of authoritative legal interpretations of the Executive Branch, existing FISC decisions and opinions, and declassified Presidential Policy Directives – all of which AALL strongly supports.

Beyond the aforementioned surveillance programs, the 2013 Secrecy Report also considers the status of open and accountable government in other areas. With regards to the Freedom of Information Act (FOIA), this year’s assessment shows that while agencies continue to make progress in reducing their FOIA request backlog, requesters must still wait far too long to get a response. There has also been been a dramatic increase in decisions to withhold information about government deliberations. While the number of people with the authority to create new secrets continues to drop, the volume of classified material continues to grow and overwhelms the government’s declassification efforts. With the National Declassification Center poised to fail to meet its December 31 deadline, the center “has released 57 million pages to the public, a 61 percent release rate.”  Further, OTG found far too much material is marked at a classification level beyond its risk to national security.  While there have been some reductions in secrecy during the Obama administration’s tenure, the rate of change is “well below what it would take to make the government open and accountable.”

AALL is a founding member of OpenTheGovernment.org, a coalition of 80+ groups advocating for open and accountable government. We commend OTG for this year’s impressive report and we will continue to work with the coalition to promote greater transparency at the federal level.

GAO Audit of OGIS is Mixed Review

October 2, 2013

By Elizabeth

A recent General Accountability Office (GAO) audit of the Office of Government Information Services (OGIS) gave mixed reviews to the agency’s success in meeting its statutory responsibilities. OGIS is charged with recommending policy changes to improve the Freedom of Information Act (FOIA) process, offering mediation services to help resolve disputes between requestors and agencies, and acting as ombudsman by responding to the needs of the diverse FOIA community.  While recognizing the constraints of OGIS’s limited budget, the GAO report concludes that OGIS’s actions are not as robust as they should be to effectively comply with the law and points to the failure of OGIS to create a plan for conducting comprehensive reviews of federal agencies’ FOIA policies or compliance.

Since its establishment in 2009, OGIS has provided comments on proposed FOIA regulations for 18 of 99 federal agencies that administer FOIA, as well as a number of Privacy Act system of records notices, according to the GAO report. While OGIS has suggested improvements to a number of those regulations and notices, GAO finds it has “not performed the reviews of regulations and notices in a proactive, comprehensive manner, and has not conducted any reviews of agencies’ compliance with the law.” OGIS is in the early stages of developing a methodology for conducting such reviews and GAO recommends that they agency set a time frame for completing this work and under which to begin carrying out proactive evaluations of agency compliance. The report also calls for the creation of performance measures for its mediation services.

In a blog post last week, director of OGIS Miriam Nisbet responded to some the criticism leveled in the GAO report.  Ms. Nisbet points to the “lessons learned” in the last four years of OGIS’s work, highlighting that above all “It is challenging to define ‘success’ in providing mediation services.” Given OGIS’s broad mandate and the great demand for OGIS’s services, the constraints of a small staff, limited budget, and large caseload present challenges.  Further, it is not obvious that Congress necessarily intended for OGIS to conduct comprehensive reviews, as GAO assumes, or that such an approach is necessary for OGIS to exercise effective oversight.

OGIS is working on an action plan to respond to the challenges identified in the GAO report and will share it with the public in the coming weeks. AALL has been supportive of OGIS and its important work in mediating FOIA disputes and offering training to agencies, and we commend the agency’s leadership in developing a uniform, centralized location to make and manage information requests. We hope to see continued Congressional support for OGIS. By promoting the availability and importance of OGIS’s mediation work, the government can avoid the animosity and costs associated with litigation and better facilitate the legal right of access to government information under FOIA.

October Washington E-Bulletin

October 1, 2013

The October issue of the Washington E-Bulletin is now available on AALLNET.


Vol. 2013, Issue 10





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