Federal Advocacy: The Year in Review

December 17, 2014

By Elizabeth Holland

The 113th Congress has come to a close, marking the end of a historically unproductive and largely dysfunctional term. While political and economic factors created new advocacy challenges in 2014, AALL members rose to the occasion and helped to achieve real progress on several of the Association’s Public Policy Positions. Here’s a roundup of action on our priorities in the past year—including several lame duck developments.

GPO Gets a New Name

The recently passed “CRomnibus” spending bill for Fiscal Year 2015 (H.R. 83) included slight increases in funding for the Government Printing Office and the Library of Congress, as well as one particularly noteworthy policy change: it re-names the Government Printing Office as the Government Publishing Office. Throughout the year, AALL members worked in support of the Government Publishing Office Act of 2014 (S. 1947) to provide GPO with a name that more accurately reflects the agency’s role as the “official, digital, secure” source of federal government information in the digital age. S. 1947 was reported by the Senate Committee on Rules and Administration but never received floor time. Instead, the bill text— which also changes the titles of the public printer and deputy public printer to “director” and “deputy director” and replaces gender-specific terms with gender-neutral ones— was rolled into the spending bill and passed into law.

FOIA Reform Phased Out

Though both the House and Senate cleared their respective bills to improve the Freedom of Information Act (FOIA) in 2014, the FOIA Improvement Act (S. 2520) will not become law this year. After clearing a challenge from outgoing Senator Jay Rockefeller (D-W.V.), the Senate bill moved to the House last Monday. Despite what appeared to be solid approval in the House, leaders in that chamber failed to put the measure on the calendar before their members adjourned for the year. The bill would have established a “presumption of openness” with government information, codifying President Obama’s 2009 directive to federal agencies. Congress is likely to revisit the issue next year.

Updates to Presidential and Federal Records Acts Enacted

This year, President Barack Obama signed into law H.R. 1233, the Presidential and Federal Records Act Amendments of 2014. This set of amendments is the first statutory change to the Federal Records Act since it was passed in 1950 and implements the important modernization of the definition of a federal record to include electronic records. It also makes several updates to the Presidential Records Act to improve access. Among several key provisions, the new law codifies the procedures by which former and incumbent presidents review presidential records for constitutional privileges and establishes a reasonable standard for release of records.

Elimination of Indexes Avoided

When the House passed the Federal Register Modernization Act (H.R. 4195) in July, AALL advocates stepped up their advocacy efforts to defend the statutory requirement to print the Federal Register and Code of Federal Regulations and produce indexes for these resources, which would have been eliminated by the bill. Sharing anecdotes about the usefulness of these texts and their indexes in print helped the Government Relations Office to engage with Senate staff about our concerns. The bill died in the Senate.

Privacy Safeguards on Back Burner

Efforts to update the Electronic Communications Privacy Act (ECPA) and reform the National Security Agency’s domestic surveillance practices were both stalled in 2014 amid contentious party divisions. The Senate blocked consideration of the USA FREEDOM Act  (S. 2685) in December, despite support from the White House, Director of National Intelligence, Senators from both parties, tech companies, and a wide coalition of organizations for the bill to curb domestic surveillance practices. Critics of the legislation said they preferred to use the June 2015 reauthorization of the USA PATRIOT Act to enact reforms. A similarly popular bill, the Email Privacy Act (H.R. 1852) to update ECPA, gained 272 co-sponsors this year but was never awarded floor time because one federal agency, the Securities and Exchange Commission, worked to keep the bill from coming to fruition. While AALL is disappointed that both efforts fizzled out, we look forward to the renewed opportunity to advance important privacy protections for individuals and library patrons in the new Congress.


Presidential and Federal Records Act Amendments Become Law

December 3, 2014

By Elizabeth Holland

Just before Thanksgiving, President Barack Obama signed into law H.R. 1233, the Presidential and Federal Records Act Amendments of 2014. This set of amendments is the first statutory change to the Federal Records Act (FRA) since it was passed in 1950 and implements the important modernization of the definition of a federal record to include electronic records. It also makes several updates to the Presidential Records Act (PRA) to improve access.

H.R. 1233 complements ongoing efforts by the National Archives and Records Administration (NARA) and the Office of Management and Budget to implement President Obama’s 2011 Memorandum on Managing Government Records. Among several key provisions, the new law codifies the procedures by which former and incumbent presidents review presidential records for constitutional privileges and establishes a reasonable standard for release of records. Formerly, this process was controlled by an Executive Order and subject to change under different administrations. The current president and affected former president will have 60 business days to review records the Archives declares an intention to make public, and that period can be extended only once, by 30 business days. Under an executive order issued by President Obama in 2009 and a previous order by President George W. Bush, there was effectively no time limit on such reviews.

H.R. 1233 also increases the transparency of the process by requiring the Archives to make public notices of planned openings of presidential records at the same time they are sent to the White House and a former president’s representative. The Archivist of the United States is now authorized to make the final determination as to what constitutes a federal record.

AALL has worked in support of changes to the FRA and PRA that would 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 for many years. We are pleased to see these important updates codified.


Senate Committee Advances FOIA Reform

November 21, 2014

By Elizabeth Holland

On Thursday, the Senate Judiciary Committee unanimously approved the FOIA Improvement Act (S. 2520), bipartisan legislation authored by Senator Patrick Leahy (D-Vt.) and Senator John Cornyn (R-Texas) to strengthen the Freedom of Information Act (FOIA).

AALL applauds the Committee’s swift passage of S. 2520, which would require federal agencies to adopt a “presumption of openness” when considering the release of government information under FOIA. The bill also aims to reduce the overuse of exemptions to withhold information from the public and would provide the Office of Government Information Services (OGIS) with additional independence and authority to carry out its work mediating FOIA disputes. In a letter sent Wednesday, AALL joined more than 70 organizations urging the Judiciary Committee to support the measure.

In February, the House passed a similar bill, the FOIA Oversight and Implementation Act (H.R. 1211). However, the Senate will need to act quickly on S. 2520 and conference both bills before FOIA reform can be written into law. AALL encourages the Senate to consider and pass the FOIA Improvement Act without delay.


Senate Fails to Advance Surveillance Reform

November 19, 2014

By Elizabeth Holland

The Senate blocked consideration of the USA FREEDOM Act (S. 2685) yesterday, effectively rejecting the last opportunity to reform the National Security Agency’s (NSA) surveillance program before the year’s end. The bill – which had the support of the White House, Director of National Intelligence, Senators from both parties, tech companies, and a wide coalition of organizations, including AALL – failed to reach cloture in a 58-42 vote. Sixty votes are required to proceed to debate and final consideration.

AALL is disappointed by the Senate’s decision to block consideration of the USA FREEDOM Act’s sensible reforms. In doing so, Congress allows the NSA’s overbroad domestic surveillance programs to continue untouched and unchecked. AALL will continue to advocate for reforms that balance the government’s interest in protecting national security with Americans’ privacy rights. Though the vote is a setback, we look forward to future opportunities – including the June 2015 reauthorization of the USA PATRIOT Act – to advance commonsense reforms.


The Lame Duck Begins

November 12, 2014

By Elizabeth Holland

The 113th Congress returns to Washington today to begin its lame duck session. Given the results of last week’s elections, the next two months will provide the first crucial test of both parties’ ability to cooperate. Democrats are sure to want to use their remaining days in the Senate majority wisely, while Republicans will aim to clear the agenda of several “must-pass” bills so their control of both chambers can start with a clean slate. Congress will need to come together on several pressing issues before the year’s end and, in doing so, may set the tone for the 114th.

This week, the Senate will consider a handful of nominations while the House handles suspension bills, including two of interest to AALL: the Government Reports Elimination Act of 2014 (H.R. 4194) and the Presidential and Federal Records Act Amendments of 2014 (H.R. 1233). AALL has opposed H.R. 4194, instead favoring the Access to Congressional Mandated Reports Act (H.R. 1380) for the creation of a free online, searchable database of all mandated reports. However, we are pleased to see that Congress will finally enact Presidential Records Act reform after many years of consideration.

On Thursday, Senate Democrats, Senate Republicans, and House Republicans will all hold their leadership elections. House Democrats are expected to hold theirs on November 18. No top congressional leader is expected to face a major challenge. The formal, public election of the Speaker of the House will take place when the new Congress convenes in January.

The real crunch time will happen after Thanksgiving, when lawmakers must pass legislation to fund the government before the current FY 2015 Continuing Resolution expires on December 11. Leaders of both parties in both chambers say they want to avoid stopgap spending measures and return to the past practice of approving annual spending legislation that allows them to set agencies’ policies. To get back on track, they will need to pass an omnibus bill in the lame duck session.

The willingness of members to find both the time and middle ground to handle big ticket items like immigration reform, the Keystone pipeline, and the recently-announced nomination of Loretta Lynch for attorney general remains to be seen. A two month temporary truce in the lame duck would offer optimism over Congress’s ability to work together over the next two year.


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.


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