Congressional Record: July 31, 2003 (Senate)
Page S10621-S10687


      By Mr. FEINGOLD (for himself, Mr. Bingaman, Mr. Kennedy, Ms. 
        Cantwell, Mr. Durbin, Mr. Wyden, Mr. Corzine, Mr. Akaka, and 
        Mr. Jeffords):
  S. 1507. A bill to protect privacy by limiting the access of the 
government to library, bookseller, and other personal records for 
foreign intelligence and counterintelligence purposes; to the Committee 
on the Judiciary.
  Mr. FEINGOLD. Mr. President, today I introduce the Library, 
Bookseller, and Personal Records Privacy Act.
  This bill would amend the Patriot Act to protect the privacy of law-
abiding Americans. It would set reasonable limits on the Federal 
Government's access to library, bookseller, medical, and other 
sensitive, personal information under the Foreign Intelligence 
Surveillance Act and related foreign intelligence authority.
  I am pleased that several of my distinguished colleagues--Senators 
Bingaman, Kennedy, Cantwell, Durbin, Wyden, Corzine, Akaka, and 
Jeffords--have joined me as original cosponsors of this important 
  I and millions of other patriotic Americans love our country and 
support our military men and women in their difficult missions abroad, 
but worry about the fate of our Constitution here at home.
  Much of our Nation's strength comes from our constitutional liberties 
and respect for the rule of law. That is what has kept us free for our 
two and a quarter century history. Our constitutional freedoms, our 
American values, are what make our country worth fighting for in the 
fight against terrorism.
  Here at home, there is no question that the FBI needs ample resources 
and legal authority to prevent future acts of terrorism. But the 
Patriot Act went too far when it comes to the government's access to 
personal information about law-abiding Americans.
  Even though in the end I opposed the Patriot Act, there were several 
provisions that I did support. For example, Congress was right to 
expand the category of business records that the FBI could obtain by 
subpoena pursuant to the Foreign Intelligence Surveillance Act. Prior 
to the Patriot Act, the FBI could seek a court order to obtain only 
travel records--such as airline, hotel, and car rental records--and 
records maintained by storage facilities. The Patriot Act allows any 
business records to be subpoenaed. I don't quibble with that change.
  But what my colleagues and I do find problematic--and an increasing 
number of Americans who value their privacy and First Amendment rights 
agree with us--is that the current law allows the FBI broad, almost 
unfettered access to personal information about law-abiding Americans 
who have no connection to terrorism or spying.
  Section 215 of the Patriot Act requires the FBI to show in an 
application to the court for a subpoena that the documents are ``sought 
for'' an international terrorism or foreign intelligence investigation. 
There is no requirement that the FBI make a showing of individualized 
suspicion that the documents relate to a suspected terrorism or spy.
  In other words, under current law, the FBI could serve a subpoena on 
a library for all the borrowing records of its patrons or on a 
bookseller for the

[[Page S10622]]

purchasing records of its customers simply by asserting that they want 
the records for a terrorism investigation.
  During the last year, librarians and booksellers have become 
increasingly concerned by the potential for abuse of this law. I was 
pleased to stand with the American Booksellers Association and the Free 
Expression Network a little over a year ago when we first started to 
raise these concerns.
  Librarians and booksellers are concerned that under the Patriot Act, 
the FBI could seize records from libraries and booksellers in order to 
monitor what books Americans have purchased or borrowed, or who has 
used a library's or bookstore's internet computer stations, even if 
there is no evidence that the person is a terrorist or spy, or has any 
connection to a terrorist or spy.
  These concerns are so strong, that some librarians across the country 
have taken the unusual step of destroying records of patrons' book and 
computer use, as well as posting signs on computer stations warning 
patrons that whatever they read or access on the internet could be 
monitored by the Federal Government.
  As a librarian in California said, ``We felt strongly that this had 
to be done. . . . The government has never had this kind of power 
before. It feels like Big Brother.''
  And as the executive director of the American Library Association 
said, ``This law is dangerous. . . . I read murder mysteries--does that 
make me a murderer? I read spy stories--does that mean I'm a spy? 
There's no clear link between a person's intellectual pursuits and 
their actions.''
  The American people do not know how many or what kind of requests 
federal agents have made for library records under the Patriot Act. The 
Justice Department refuses to release that information to the public.
  But in a survey released by the University of Illinois at Urbana-
Champaign, about 550 libraries around the Nation reported having 
received requests from Federal or local law enforcement during the past 
year. About half of the libraries said they complied with the law 
enforcement request, and another half indicated that they had not.
  Americans don't know much about these incidents, because the law also 
contains a provision that prohibits anyone who receives a subpoena from 
disclosing that fact to anyone.
  David Schwartz, president of Harry W. Schwartz Bookshops, the oldest 
and largest independent bookseller in Milwaukee, summed up well the 
American values at stake when he said: ``The FBI already has 
significant subpoena powers to obtain records. There is no need for the 
government to invade a person's privacy in this way. This is a uniquely 
un-American tool, and it should be rejected. The books we read are a 
very private part of our lives. People could stop buying books, and 
they could be terrified into silence.''
  Afraid to read books, terrified into silence. Is that the America we 
want? Is that the America where we'd like to live? I don't think so. 
And I hope my colleagues will agree.
  It is time to reconsider those provisions of the Patriot Act that are 
un-American and, frankly, un-patriotic.
  Bu my concerns with the Patriot Act go beyond library and bookseller 
records. Under section 215 of the Patriot Act, the FBI could seek any 
records maintained by a business. These business records could contain 
sensitive, personal information--for example, medical records 
maintained by a doctor or hospital or credit records maintained by a 
credit agency. All the FBI would have to do is simply assert that the 
records are ``sought for'' its terrorism or foreign intelligence 
  Section 215 of the Patriot Act goes too far. Americans rightfully 
have a reasonable expectation of privacy in their library, bookstore, 
medical, financial, or other records containing personal information. 
Prudent safeguards are need to protect these legitimate privacy 
  The Library, Bookseller, and Personal Records Privacy Act is a 
reasonable solution. It would restore a pre-Patriot Act requirement 
that the FBI make a factual, individualized showing that the records 
sought pertain to a suspected terrorist or spy.
  My bill will not prevent the FBI from doing its job. My bill 
recognizes that the post-September 11 world is a different world. There 
are circumstances when the FBI should legitimately have access to 
library, bookseller, or other personal information.
  I would like to take a moment to explain how the safeguard in my bill 
would be applied. Suppose the FBI is conducting an investigation of an 
international terrorist organization. It has information that suspected 
members of the group live in a particular neighborhood. The FBI would 
like to serve a subpoena on the library in the suspects' neighborhood. 
Under current law, the FBI could decide to ask the library for all 
records concerning anyone who has ever borrowed a book or used a 
computer, and what books were borrowed, simply by asserting that the 
documents are sought for a terrorism investigation. But under my bill, 
the FBI could not do so. The FBI would have to set forth specific and 
articulable facts giving reason to believe that the person to whom the 
records pertain is a suspected terrorist. The FBI could subpoena only 
those library records--such as borrowing records or computer sign-in 
logs--that pertain to the suspected terrorists. The FBI could not 
obtain library records concerning individuals who are not suspected 
  So, under my bill, the FBI can still obtain documents that it 
legitimately needs, but my bill would also protect the privacy of law-
abiding Americans. I might add, that if, as the Justice Department 
says, the FBI is using its Patriot Act powers in a responsible manner, 
does not seek the records of law-abiding Americans, and only seeks the 
records of suspected terrorists or suspected spies, then there is no 
reason for the Department to object to my bill.
  The second part of my bill would address privacy concerns with 
another Federal law enforcement power expanded by the Patriot Act--the 
FBI's national security letter authority, or what is sometimes referred 
to as ``administrative subpoena'' authority because the FBI does not 
need court approval to use this power.
  My bill would amend section 505 of the Patriot Act. Part of this 
section relates to the production of records maintained by electronic 
communications providers. Libraries or bookstores with internet access 
for customers could be deemed ``electronic communication providers'' 
and therefore be subject to a request by the FBI under its 
administrative subpoena authority.
  As I mentioned earlier, some librarians are so concerned about the 
potential for abuse by the FBI that they have taken matters into their 
own hands before the FBI knocks on their door. Some librarians have 
begun shredding on a daily basis sign-in logs and other documents 
relating to the public's use of library computer terminals to access 
the Internet.
  Again, safeguards are needed to ensure that any individual who 
accesses the internet at a library or bookstore does not automatically 
give up all expectations of privacy. Like the section 215 I've 
discussed, my bill would require an individualized showing by the FBI 
of how the records of internet usage maintained by a library or 
bookseller pertain to a suspected terrorist or spy.
  Yes, the American people want the FBI to be focused on preventing 
terrorism. And, yes, it may make sense to make some changes to the law 
to allow the FBI access to the information that it needs to prevent 
terrorism. But we do not need to change the values that constitute who 
we are as a nation in order to protect ourselves from terrorism. We can 
protect both our nation and our privacy and civil liberties.
  An increasing number of Americans are beginning to understand that 
the Patriot Act went too far. Three States and over 130 cities and 
counties across the country have now passed resolutions expressing 
opposition to the Patriot Act. And it's not just the Berkeleys and 
Madisons of the Nation, but other States and communities with strong 
libertarian values, such as Alaska and cities in Montana, have passed 
such resolutions.
  I have many concerns with the Patriot Act. I am not seeking to repeal 
it, in whole or in part. My colleagues and I are only seeking to modify 
two provisions that pose serious potential for abuse.
  The privacy of law-abiding Americans is at stake. Congress should act 

[[Page S10623]]

protect our privacy. And my bill is a reasonable approach to do just 
  I urge my colleagues to join me and support the Library, Bookseller, 
and Personal Records Privacy Act.
  I ask unanimous consent that the text of the bill be printed in the 
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1507

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,


       This Act may be cited as the ``Library, Bookseller, and 
     Personal Records Privacy Act''.


       (a) Applications for Orders.--Subsection (b) of section 501 
     of the Foreign Intelligence Surveillance Act of 1978 (50 
     U.S.C. 1861) is amended--
       (1) in paragraph (1), by striking ``and'' at the end;
       (2) in paragraph (2), by striking the period at the end and 
     inserting ``; and''; and
       (3) by adding at the end the following new paragraph:
       ``(3) shall specify that there are specific and articulable 
     facts giving reason to believe that the person to whom the 
     records pertain is a foreign power or an agent of a foreign 
       (b) Orders.--Subsection (c)(1) of that section is amended 
     by striking ``finds'' and all that follows and inserting 
     ``finds that--
       ``(A) there are specific and articulable facts giving 
     reason to believe that the person to whom the records pertain 
     is a foreign power or an agent of a foreign power; and
       ``(B) the application meets the other requirements of this 
       (c) Oversight of Requests for Production of Records.--
     Section 502 of that Act (50 U.S.C. 1862) is amended--
       (1) in subsection (a), by striking ``the Permanent'' and 
     all that follows through ``the Senate'' and inserting ``the 
     Permanent Select Committee on Intelligence and the Committee 
     on the Judiciary of the House of Representatives and the 
     Select Committee on Intelligence and the Committee on the 
     Judiciary of the Senate''; and
       (2) in subsection (b), by striking ``On a semiannual 
     basis,'' and all that follows through ``a report setting 
     forth'' and inserting ``The report of the Attorney General to 
     the Committees on the Judiciary of the House of 
     Representatives and the Senate under subsection (a) shall set 


       (a) In General.--Section 2709 of title 18, United States 
     Code, is amended--
       (1) by redesignating subsection (e) as subsection (f); and
       (2) by inserting after subsection (d) the following new 
     subsection (e):
       ``(e) Records of Booksellers and Libraries.--(1) When a 
     request under this section is made to a bookseller or 
     library, the certification required by subsection (b) shall 
     also specify that there are specific and articulable facts 
     giving reason to believe that the person or entity to whom 
     the records pertain is a foreign power or an agent of a 
     foreign power.
       ``(2) In this subsection:
       ``(A) The term `bookseller' means a person or entity 
     engaged in the sale, rental, or delivery of books, journals, 
     magazines, or other similar forms of communication in print 
     or digitally.
       ``(B) The term `library' means a library (as that term is 
     defined in section 213(2) of the Library Services and 
     Technology Act (20 U.S.C. 9122(2))) whose services include 
     access to the Internet, books, journals, magazines, 
     newspapers, or other similar forms of communication in print 
     or digitally to patrons for their use, review, examination, 
     or circulation.
       ``(C) The terms `foreign power' and `agent of a foreign 
     power' have the meaning given such terms in section 101 of 
     the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 
       (b) Sunset of Certain Modifications on Access.--Section 
     224(a) of the USA PATRIOT ACT of 2001 (Public Law 107-56; 115 
     Stat. 295) is amended by inserting ``and section 505'' after 
     ``by those sections)''.