On Tuesday, May 25, the American Booksellers Foundation for Free Expression (ABFFE), the American Library Association (ALA), and the Freedom to Read Foundation (FTRF) filed a brief in support of an American Civil Liberties Union (ACLU) challenge to Section 505 of the USA Patriot Act. The groups argue that 505 threatens the privacy of bookstore and library patrons because the provision makes it easy for the FBI to obtain sensitive information about the customers of "electronic communications service providers" -- including bookstores and libraries that offer Internet services to the public.
"While Section 215 of the Patriot Act has been the main source of our concern up to now, Section 505 also threatens the privacy of bookstore and library records," said Chris Finan, president of ABFFE. "In at least one way, it is worse than 215 because the FBI does not even need to apply to a secret court for an order to produce records -- it simply issues one itself."
ACLU filed its lawsuit challenging the provision on April 6, contending that Section 505 violated the First Amendment by authorizing the FBI to issue National Security Letters (NSL) to obtain any customer's "subscriber information," "toll billing records information," and "electronic communication transactional records" whenever it believes this information is relevant to a terrorism or clandestine intelligence investigation.
While Section 215 allows the FBI to secretly seek a special court order authorizing it to demand records from a business or any other institution because they are relevant to terrorism or a clandestine intelligence investigation, Section 505 focuses on electronic records. These records would include those from Internet Service Providers or ISPs, such as America Online and Earthlink. However, the definition of "electronic communications service provider" is arguably broad enough to cover any bookstore that operates a Web site or offers the public access to the Internet on its premises, the groups contend.
Both Section 215 and 505 eliminate the requirement that the FBI demonstrate "probable cause" before demanding customer records, which means that it may search the records of people who are not suspected of criminal activity. Both sections also impose an automatic gag order on those whose records are searched, which makes it very difficult to appeal to the courts.
In the amicus brief, ABFFE, ALA, and FTRF note: "By ceding to the government unprecedented and unchecked authority to issue NSL's, the Patriot Act risks compromising individuals' First Amendment right to communicate anonymously over the Internet."
ABFFE and FTRF also submitted an amicus brief in the ACLU challenge to Section 215 that was filed last year. The judge in that case is considering a government motion to dismiss the lawsuit. --David Grogan