Statement on the Renewal of the USA PATRIOT Act

July 15, 2004

We support the position of the American Library Association and other groups from the archives, library, history, and records management communities that have expressed reservations about the extent to which the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (the USA PATRIOT Act) impinges on the privacy rights of American citizens. Like all Americans, archivists condemn terrorism and support the right of the United States to defend itself against future attacks. Because we live in a democracy, however, archivists also believe that our responses to the threat of terrorism must take into account the protection of civil liberties that are guaranteed in the Bill of Rights of the United States Constitution.

Archivists administer access to records that have been created by government agencies and private organizations. We work to balance the right of access to records with the right to privacy of donors, researchers, and third parties whose identities and other personal information are included in archival records.

We believe that in the aftermath of the September 11, 2001, terrorist attacks, the USA PATRIOT Act was passed without a thorough evaluation of its potential for violating legitimate privacy rights and giving to law enforcement agencies significant authority without sufficient accountability. We add our collective voice to the growing number of Congressional representatives of both parties, as well as organizations from across the political spectrum, that have expressed similar concerns.

Two examples that illustrate our concern:

• Section 215 of the USA PATRIOT Act has recast the definition of business records found in the Foreign Surveillance Intelligence Act (FSIA) to include records about researchers that are created by an archives. The former practice of requiring “probable cause” has been eroded, and investigators need now only certify to a FSIA judge that the search protects against terrorism in order to get a court order allowing federal agents to examine archival records.
• In addition, the extended use of national security letters issued under Section 505 allows agents access to certain records that might be found in an archives without judicial oversight or review. Archivists are rightly concerned that the normal system of judicial checks and balances that protects citizens has been replaced by secret procedures that cannot be challenged.

Archivists believe that democracy thrives when public officials can be held accountable for their actions. Because of this we are also concerned about the secrecy surrounding many USA PATRIOT Act activities, and we are troubled by both:

• The provisions in the Act that limit our ability to report requests for information from federal officials and
• The considerable lessening of requirements on the government to provide information on the use of various investigatory options under the USA PATRIOT Act. Under the current law, the records of possible misdeeds committed under the auspices of the Act could remain hidden from public view for hundreds of years.

Archivists support legitimate attempts to improve the security of the United States, but we believe that certain provisions of the USA PATRIOT Act are overreaching and must be re-examined. The USA PATRIOT Act should be amended to protect the privacy of archives users, donors, and third parties except in those cases in which the government has demonstrated to a court that there is a justified reason for violating that privacy. Further, the Act should be amended to ensure, to the greatest extent possible, that government officials are accountable for their actions and that all records taken under the provisions of the USA PATRIOT ACT will be open at some appropriate time in the future.

The narrow margin of victory and the intensity of discussion preceding the July 8, 2004, approval of the provision that permits the Federal Bureau of Investigation to monitor circulation records and Internet usage of those who use public libraries illustrates how important this matter is and how strongly Americans on both sides of the issue feel about it.

We call on the United States Congress to join in a bipartisan effort to re-examine the USA PATRIOT Act as it considers the renewal or extension of various provisions, to make any revisions that are necessary to enhance the Act’s effectiveness as a tool in combating terrorism, and to ensure that none of this comes at the expense of the civil liberties that Americans cherish.