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.


Urgent: Tell the House to Oppose Cuts to GPO Funding

May 18, 2015

By Elizabeth Holland

The House of Representatives will vote tomorrow on H.R. 2250, the Fiscal Year 2016 Legislative Branch Appropriations Act. If passed in its current form, H.R. 2250 will eliminate funding for the Government Publishing Office’s (GPO) Revolving Fund.  AALL opposes these cuts because without this funding, GPO may be unable to develop new digital content collections, increase accessibility of content, or improve discoverability of government information through its Federal Digital System (FDsys.gov). As the only source of no-fee public access to official digital government information from all three branches of the federal government, FDsys plays an essential role in supporting a healthy democracy.

We urge AALL members to contact your Representative today to ask him/her to oppose the cuts to GPO’s Revolving Fund in H.R. 2250. Please express your support for full funding of GPO and, in particular, the need to fund the continued development of FDsys through the Revolving Fund. We’ve set up a new action alert in AALL’s Legislative Action Center so that you can easily contact your Representative in advance of the vote, even if you’ve already taken action on this issue this year.

Be sure to customize your email to your Representative for maximum impact. For example, if you are a regular FDsys user, tell your member of Congress why it is a valuable resource to you and your patrons. Personalized constituent contacts are critical to our success in ensuring GPO can continue to fulfill it vital mission. Your personal stories will help our efforts to restore full funding for GPO when the appropriations bill moves to the Senate.

Thank you for taking action!


Surveillance Reform Clears House

May 14, 2015

By Elizabeth Holland

The House of Representatives voted 338 to 88 to pass the USA FREEDOM Act (H.R. 2048) on Wednesday, taking an important step forward to restrict overbroad government surveillance in advance of the June 1 expiration of USA PATRIOT Act provisions. AALL urges the Senate to follow suit and act quickly to approve the USA FREEDOM Act without any weakening amendments.

The USA FREEDOM Act would reform Section 215, the “library records” provision, of the USA PATRIOT Act to end the National Security Agency’s bulk collection of Americans’ telephone records. Last week, the Second Circuit Court of Appeals ruled that the program is illegal, making it much more difficult for the bulk collection program to continue. The White House also issued a Statement of Administration Policy in support of the USA FREEDOM Act.

Though AALL was disappointed that amendments to strengthen the bill were blocked in the committee process, we believe the USA FREEDOM Act is a critical to ending the bulk collection program and protecting the privacy of all Americans. We are pleased that H.R. 2048 contains important privacy and transparency provisions, including a requirement that significant constructions or interpretations of law by the Foreign Intelligence Surveillance Court be made public.

AALL opposes an effort by Senate Majority Leader Mitch McConnell, S. 1035, to renew the expiring USA PATRIOT Act authorities for another five years without reform. While that measure would likely fail, Senators opposed to the USA FREEDOM Act have suggested bringing a short-term reauthorization to the floor in the face of a potential filibuster. With the clock ticking toward expiration, the Senate should feel pressure to act.

While the USA FREEDOM Act is far from perfect, this legislation offers a path for effective and meaningful reform to restore privacy. With the courts, White House, House of Representatives, and American people clearly in favor of reform, AALL urges the Senate to approve this sensible compromise legislation.


May Washington E-Bulletin

May 1, 2015

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

IN THIS ISSUE
Vol. 2015, Issue 05

A LOOK AHEAD

ACT NOW

AALL IN THE STATES

ROUNDUP AND REVIEW


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.


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