House Judiciary Committee Acts on ECPA

April 13, 2016

Today, the House Judiciary Committee approved a version of the Email Privacy Act (H.R. 699) to bring the Electronic Communications Privacy Act into the 21st century.

The Email Privacy Act would require a warrant for law enforcement to obtain the content of emails, online documents, and other private electronic communications. The Manager’s Substitute Amendment, introduced by Chairman Bob Goodlatte (R-Va.), creates no special carve-outs for federal civil agencies, as had been the subject of some debate.

Support for ECPA reform was one of AALL’s top priorities during our recent Virtual Lobby Day. We commend the Judiciary Committee for unanimously approving the Email Privacy Act and urge the House to act quickly to pass the bill.


July 28, 2015

By Elizabeth Holland

Today, AALL joins a number a number of privacy advocates, civil liberties groups, security experts, and technology companies for a Day of Action in opposition to the Cyber Information Sharing Act (CISA, S. 754). Our message is simple: CISA is a bad bill. While this legislation promises security, in actuality, it does more to increase surveillance, undermine transparency, and leave your personal information vulnerable to attack than it does to protect against cyber threats. With the Senate slated to consider it in the coming weeks – even as early as next week– we urge members of Congress to oppose CISA and, should push come to shove, implore President Obama to veto it.

Chief among our privacy concerns with CISA is the permission the bill grants for overbroad information sharing. Under CISA, companies in the private sector are authorized to share information about their users’ Internet activity with the federal government, even when that data is unnecessary to identify or protect against a threat. Information shared with one federal agency could then be shared throughout the government, potentially putting your personal information or that of your library users in the hands of agencies like the National Security Agency, Department of Justice, and the Department of Defense and leaving the information vulnerable to hackers.

CISA would also add a new exemption to the Freedom of Information Act (FOIA) for the first time since 1967. Section 10 of the bill provides that any and all information shared with or provided to the federal government pursuant to CISA is exempt from disclosure under FOIA, including private information unrelated to a cybersecurity threat. Passing CISA would also give jurisdiction over FOIA to the most secretive committee in the Senate, the Senate Select Committee on Intelligence (SSCI), which almost never holds public hearings and has never held one on this legislation. The Senate Judiciary Committee, which has jurisdiction over FOIA, has never held hearings or had an opportunity to consider the justification for the new FOIA exemption. As our friends at posit, “allowing SSCI to write new exemptions to FOIA, without any public consideration or input from the Judiciary Committee, could set a dangerous precedent for further weakening the law at the intelligence community’s request.”

Cybersecurity is an increasingly important issue for U.S. industry, federal, and state governmental entities and AALL would strongly support a good-faith effort to improve information sharing for cybersecurity purposes. However, CISA is not that legislation. Write your Senators today to urge them to oppose CISA for the automatic and over-broad surveillance authorities and transparency-weakening provisions it would enable.

Congress Passes Historic Surveillance Reform

June 2, 2015

By Elizabeth Holland

AALL applauds the Senate passage of the USA FREEDOM Act (H.R. 2048) today, without amendment, by a vote of 67-32. The USA FREEDOM Act will end the bulk collection of Americans’ communications records under Section 215 of the USA PATRIOT Act, the Foreign Intelligence Surveillance Act (FISA) pen register authority, and National Security Letter (NSL) statutes. Under the legislation, all significant constructions or interpretations of law by the FISA court must be made public. The bill will also create a panel of amicus curie to provide guidance on matters of privacy and civil liberties, communications technology, and other technical or legal matters. President Obama is expected to sign the bill into law, ushering in the most significant reduction in the government’s surveillance authorities since the 2001 passage of the USA PATRIOT Act.

AALL was pleased to see the Senate decisively reject all three weakening amendments offered to the USA FREEDOM Act by Senate Majority Leader Mitch McConnell (R-Ky.). These amendments would have unnecessarily extended the government’s authority to collect Americans’ communications records in bulk by an extra six months, required service providers receiving an order for production of call detail records to notify the Attorney General if they intend to retain call detail records for less than 18 months, and weakened the amicus provision. A fourth amendment to strike disclosure of FISA Court opinions to the public was tabled by the Majority Leader.

AALL and our members have long advocated for reforms to the USA PATRIOT Act that protect the privacy of library users and all Americans, including changes to Section 215 and the NSL authorities. As our Government Relations Policy states, “AALL supports a comprehensive national and state framework for privacy protection to safeguard the rights of all Americans. 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.” The enactment of the USA FREEDOM Act is an important and significant step forward in limiting overbroad government surveillance. Thank you to all members of AALL who have helped to usher in this historic reform!

Section 215: The Final Countdown

May 29, 2015

By Elizabeth Holland

Having failed to address the expiring provisions of the USA PATRIOT Act, the Senate will convene this Sunday afternoon with hopes of striking a deal just hours before the June 1 deadline. With the clock ticking, both chambers of Congress must scramble to address the surveillance reform supported by over 80 percent of Americans or risk sunsetting existing authorities.

Last weekend, the Senate narrowly voted down cloture on the USA FREEDOM Act (H.R. 2048) before adjourning for the Memorial Day recess. At the same time, members of both parties also rejected four efforts by Majority Leader Mitch McConnell (R-Ky.) to extend the expiring USA PATRIOT Act provisions in the short-term. In the week since the failed votes, Senate Intelligence Committee Chairman Richard Burr (R-N.C.) and Ranking Member Dianne Feinstein (D-Calif.) have each floated “compromise” legislation to address the expiring surveillance laws. Both bills contain flaws and omissions that are incompatible with the goal of stopping domestic bulk collection, as AALL stated in a coalition letter sent to Senate leadership today. Meanwhile, Reps. Justin Amash (R-Mich.) and Thomas Massie (R-Ky.) have watched over their chamber’s pro forma sessions this week to ensure that GOP leaders didn’t extend expiring portions of the law without their consent.

There are several possible scenarios that could play out in Sunday’s Senate session. The Burr, Feinstein, or another yet-unknown compromise bill may be introduced and brought for consideration. Senator McConnell could drop his vocal opposition to the House-passed USA FREEDOM Act and allow another vote, with amendments. The Majority Leader may also attempt to pass another short-term extension and call on the House to act immediately, but it’s far from guaranteed that the House would agree to an extension, even a short one. With no clear path forward, the possibility that the PATRIOT Act provisions will sunset on Sunday at midnight is considerable.

AALL will be watching the Senate proceedings closely. We continue to urge passage of the USA FREEDOM Act and oppose any weakening amendments or extension of the PATRIOT Act that does not end bulk collection of Americans’ records. For the latest developments, follow us on twitter at @AALL_GRO and be sure to contact your members of Congress if you have not already done so.

Surveillance Reform Update: On Filibusters, Sunsets, and Reauthorization

May 21, 2015

By Elizabeth Holland

Yesterday afternoon, Senator Rand Paul (R-Ky.) took to the Senate floor to lambast government surveillance programs. Over the course of 10.5 hours, he was joined by members from both parties who spoke at length about their opposition to the USA PATRIOT Act and called for substantial reform to protect Americans’ privacy from government intrusion.

Whether Senator Paul’s talk-a-thon qualified as a true filibuster is unclear; though his control of the floor prevented Senate Majority Leader Mitch McConnell (R-Ky.) from filing cloture on both the AALL-supported USA FREEDOM Act (H.R. 2048) and a bill to extend the expiring provisions of the USA PATRIOT Act for two months (S. 1357),  it’s not certain that Sen. McConnell ever intended to do so on Wednesday. Nonetheless, Sen. Paul’s extended floor speech came as the Senate comes down to the wire, making the chance of a clean reauthorization of the expiring USA PATRIOT Act  provisions before the June 1 deadline increasingly improbable.

Senators are now scrambling to avoid a sunset of Section 215 of the USA PATRIOT Act (the “library records” provision). This morning, McConnell filed cloture on H.R. 2048 and S. 1357, setting up a probable Saturday vote. However, the House has already adjourned for its Memorial Day recess, meaning the provisions will expire before their scheduled return unless the Senate passes the House-approved USA FREEDOM Act. House Speaker John Boehner (R-Ohio) held his ground today saying, “The House has acted. It’s time for the Senate to act. If they act, we’ll take a look at what they do and make a decision on how to proceed.”  If the Senate passes a short-term reauthorization, the out-of-town House would need to agree to it next week under unanimous consent during its pro forma session.

As the clock ticks, more Senators have announced their support for the USA FREEDOM Act, which would effectively end the National Security Agency’s bulk collection of Americas’ telephone data, including Senator Bill Nelson (D-Fla.), the lone Democrat to oppose the bill last year when it fell two votes shy of cloture. A report released today by the Department of Justice’s Office of the Inspector General shows the expiring Section 215 of the PATRIOT Act has been used by the Federal Bureau of Investigation to collect “telephone records of U.S. persons who were not the subject of or associated with the subjects of authorized investigations.” The Second Circuit Court of Appeals already ruled the program unconstitutional and an April 2015 poll commissioned by the ACLU shows Americans believe the USA PATRIOT Act should not be reauthorized in its current form by nearly a 2:1 margin (60 percent modify, 34 percent preserve).

AALL urges the Senate to pass the USA FREEDOM Act, without weakening amendment, before the upper chamber leaves town for the Memorial Day recess. Use our Legislative Action Center to contact your members of Congress in support of privacy reform and urge your Senators and Representative to oppose any legislation that extends the USA PATRIOT Act without amendment.

The timing and strategy of Congressional action on this issue are in flux and subject to change. Stay tuned to the Washington Blawg and follow us on Twitter @AALL_GRO for the latest.

AALL Urges Enactment of USA FREEDOM Act

April 29, 2015

By Elizabeth Holland

The USA FREEDOM Act (H.R. 2048, S. 1123) was reintroduced in both chambers of Congress yesterday by a bipartisan, bicameral coalition of members. Though more limited in scope than legislation by the same name which ultimately failed to pass last year, the USA FREEDOM Act of 2015 would end the National Security Agency’s ongoing bulk collection of domestic phone records and prevent the government from establishing new bulk collection programs under several other authorities. AALL urges Congress to move swiftly to adopt the USA FREEDOM Act, which we believe to be a significant first step forward toward making these important reforms.

Falling somewhere between the 113th Congress’s weak House-passed bill and the compromise Senate version, the current iteration of the USA FREEDOM Act includes important privacy and transparency provisions. The bill would end the bulk collection of Americans’ communications records under Section 215 of the USA PATRIOT Act, the Foreign Intelligence Surveillance Act (FISA) pen register authority, and National Security Letter (NSL) statutes. Under the legislation, all significant constructions or interpretations of law by the FISA court must be made public. The bill would also create a panel of amicus curie to provide guidance on matters of privacy and civil liberties, communications technology, and other technical or legal matters.

With the June 1 expiration of PATRIOT Act provisions approaching, the House Judiciary Committee is scheduled to markup the USA FREEDOM Act tomorrow. AALL urges the Committee to adopt amendments to restore the oversight, transparency, and accountability requirements included in the 113th Congress’s compromise bill. In addition, we support the proposed bipartisan Poe-Lofgren Amendment to amend and close the “backdoor loophole” under Section 702 of FISA to prohibit searches of data collected for the purpose of finding the communications of a U.S. person. A similar amendment was adopted in the Fiscal Year 2015 Defense Appropriations bill.

AALL opposes clean reauthorization of Section 215 without amendment. In its current form, the USA FREEDOM Act offers a path for effective and meaningful reform to restore privacy and transparency and we urge its swift enactment.

AALL Strongly Opposes Clean Reauthorization of Section 215 of USA PATRIOT Act

April 23, 2015

By Elizabeth Holland

With the June 1 expiration looming, Senate Majority Leader Mitch McConnell (R-Ky.) and Senate Select Intelligence Committee Chairman Richard Burr (R-N.C.) have introduced legislation to reauthorize of key provisions of the USA PATRIOT Act (Patriot Act). The bill, S. 1035, would extend, without amendment, Section 215 of the Patriot Act through 2020. Circumventing the usual deliberation and debate that occurs in committee, the Majority Leader has invoked Rule XIV, a Senate procedural rule to bypass the usual committee process and send the bill straight to the Senate floor.

AALL staunchly opposes this effort to cleanly reauthorize Section 215, the “library records” provision, which has been used to justify the National Security Agency’s mass surveillance of Americans’ phone records. Since its hasty passage in 2001, the Patriot Act has upended Americans’ expectation of privacy and fomented a culture of government secrecy. Section 215 expanded the government’s authority to collect information about innocent Americans by broadening the scope of production from “records” to “any tangible things (including books, records, papers, documents, and other items)”. Section 215 orders come with a “gag order” that restrains the recipient of a Section 215 order from disclosing that records were sought or obtained to anyone other than the attorneys involved in the case. As the existence of the NSA’s surveillance activities been brought to light, the majority of Americans have expressed grave concerns over the erosion of their constitutional protection of privacy.

Senators McConnell and Burr’s proposal to cleanly reauthorize Section 215 without amendment or opportunity for committee debate ignores the overwhelming consensus that the bulk collection of Americans’ phone records under Section 215 must end. AALL renews our call on members of Congress to oppose any surveillance legislation that does not contain major reforms to our nation’s surveillance laws. We urge Congress to make substantial and significant reforms to the Patriot Act to protect Americans’ constitutional freedoms and personal information from government surveillance.

On Data Privacy Day, ECPA Stands Frozen in Time

January 28, 2015

By Elizabeth Holland

Today is Data Privacy Day, the annual event aimed at drawing attention to the importance of protecting privacy on the Internet. And guess what? The law that protects the privacy of your online communications and that of your library patrons from government intrusion, the Electronic Communications Privacy Act (ECPA), has still not been updated since it was authored in 1986.

ECPA was passed into law at time when people did not have laptops, did not utilize the cloud, or did not generally use email. Of course, lawmakers did not anticipate the technological advancements of the decades to come, let alone establish the appropriate protections needed to accommodate them. How could they have? The rules governing your online privacy are older than the Web itself. While technology has advanced at a rapid pace, electronic privacy law has remained at a standstill. Without reform, the kind of electronic communications and records that are common today— think any email, Facebook posts, search history, cloud computing documents, cell phone location information, or text messages older than 180 days— can be freely seized without a warrant.

In the last Congress, efforts to update ECPA received broad, bipartisan support, but ultimately stalled. The House bill, the Email Privacy Act (H.R. 1852), even gained a majority 272 co-sponsors, but was never awarded floor time because one federal agency, the Securities and Exchange Commission, worked to keep the bill from coming to fruition.

We anticipate last year’s sponsors will introduce their legislation to update ECPA shortly, and we have urged members the Senate and House to move swiftly to advance the bills. It has been 29 years since ECPA was enacted. Reform is long overdue and there is no better time to focus on the need to protect individuals’ privacy online than on Data Privacy Day.

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.

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.

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