Free speech and privacy advocates who have spent nearly two years attacking provisions of the USA Patriot Act say a flurry of recent bipartisan legislative activity is proof that congressional sentiment has taken a dramatic turn in their favor.
Two Senate bills introduced late last month attack the most controversial portion of the act, Section 215, which grants the government wide latitude to conduct secret searches without probable cause. The Library and Personal Records Privacy Act, sponsored by Sen. Russell Feingold, D-Wis., and the Protecting the Rights of Individuals Act, sponsored by Sen. Lisa Murkowski, R-Alaska, and Ron Wyden, D-Ore., limit searches to the records of people who are "foreign agents" believed to be engaged in acts of espionage or terrorism.
The introduction of these bills follows a recent clear-cut victory for critics of the Patriot Act. On July 22, the House of Representatives voted 309—118 to approve the Otter Amendment, which prohibits so-called "sneak and peak" searches authorized by the act. The vote is seen as a promising sign by proponents of the Freedom to Read Protection Act. That proposal, introduced in March by Rep. Bernie Sanders, I-Vt., would curb the FBI's power to search bookstores and libraries. It would require the government to seek a search warrant and exempt booksellers and librarians from the act's "gag order" provision, which prohibits them from telling anyone about the searches. In May, Sen. Barbara Boxer, D-Calif., introduced similar legislation, the Library and Bookseller Protection Act.
Chris Finan, president of the American Booksellers Foundation for Free Expression, said lawmakers are beginning to feel comfortable raising concerns that might have gotten them branded as unpatriotic in the immediate aftermath of September 11. "In the beginning, there was a natural knee-jerk response that we need to give the Justice Department every possible tool to fight terrorism," Finan said. "As time has gone on and there have not been additional acts of terrorism on American soil, people are beginning to wonder whether the powers that were granted to the Justice Department have been too great."
Lynne Bradley, director of government relations for the American Library Association, attributes national lawmakers' new willingness to debate troubling aspects of the Patriot Act to pressure brought by municipalities, librarians and others at the grassroots level. "What you see is groups and individuals through a very wide political spectrum raising a flag and saying, 'wait, we've got to debate this,' " Bradley said.
As the Patriot Act comes under greater scrutiny in Congress, it's also being attacked in court. On July 30, the American Civil Liberties Union filed the first affirmative legal challenge to the act, targeting Section 215. The federal lawsuit, which names six Arab-American and Islamic groups as plaintiffs, challenges the constitutionality of the act because it allows the FBI to search and seize records and property without a warrant and imposes a "gag order" to keep the searches secret.
ACLU attorney Jameel Jaffer said that while Congress may repeal Section 215 before the lawsuit has a chance to make its way through the courts, "in the meantime, we're not going to sit on our hands."
Between the court and legislative challenges taking aim at the act, Finan said he's become more optimistic that the law will be changed to limit the government's ability to comb through bookseller and library records. But he concedes that could change if there is another attack. "I think it's still an uphill battle," he said. "When concerns about terrorism run high, support for this kind of legislation is going to run high."
