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WASHINGTON HOTLINE

C&RL News, November 2004
Vol. 65, No. 10

by Bernadette Murphy

Intelligence Reform Act of 2004 passes in Senate—Makes way for national ID card
The National Intelligence Reform Act of 2004, S 2845, was passed by the Senate on October 6, and one provision of the bill makes way for the establishment of a national identification card system. The provision, introduced by Senator John McCain (R-Arizona), essentially creates a national ID card system by requiring all states to conform to database standards for driver’s licenses and state IDs. Once federalized, driver’s licenses would become the key to access personal information about the holder.

ALA has long worked in opposition to proposals calling for a national ID system and other initiatives that needlessly intrude into personal privacy. The creation of a standardized system across all states threatens to open the door to a national ID card system, but without the full and public debate that should occur regarding such a proposal.

The National Intelligence Reform Act is based substantially on recommendations from the 9/11 Commission report, but the McCain provision for a national ID card was not one of the 9/11 commission’s recommendations. Library supporters are asked to call their senators to express their concern with this part of the bill. You may call any member of Congress toll-free at (800) 839-5276.

Court decision on PATRIOT Act may affect libraries
September 29 marked an important victory for civil liberties when U.S. District Judge Victor Marrero struck down Section 505 of the PATRIOT Act, which permitted the FBI to obtain subscriber information and toll billing records and other records from electronic communications service providers “without any judicial oversight or opportunity for challenge.”

Section 505 authorizes the FBI to issue National Security Letters (NSL) to compel production of certain records whenever the FBI certifies that those records are relevant to a terrorism or counter-terrorism investigation. And, like Section 215 of the PATRIOT Act, NSL recipients are subject to a limitless gag order that forbids disclosure of even the fact that the FBI has sought or obtained records.

Since many libraries may be “electronic service providers” if they provide public access to the Internet, libraries are among the entities that may benefit from this ruling.

In striking down the provision, Marrero found that the secret administrative subpoenas violated the Fourth Amendment because they “effectively bar or substantially deter any judicial challenge to the NSL.” The court further found that even if judicial review were provided, the gag order violated the First Amendment because it represented “a prior restraint on speech that was sweeping in scope” and appeared to apply “in perpetuity.”

While the judge’s order represents an important milestone in the fight to cut back on the worst excesses of the Patriot Act, it does not have any immediate effect because the judge stayed enforcement of its judgment for 90 days in order to allow the government time either to appeal to the Second Circuit or to raise objections in the District Court. The Department of Justice has indicated that it will appeal the decision.

However, longer term, the decision may have an impact on pending litigation challenging the gag order in Section 215, which is virtually identical to the gag order struck down by the court.