Senator Sessions (R-AL) offered several amendments (apparently sought by the Obama administration) that further limited provisions intended to increase civil liberties protections. All the amendments were adopted.
Of greatest interest to the library community is Sessions’ amendment to the proposed higher Section 215 standard for library records. The amendment eliminates the language “records pertaining to libraries” so that the higher standard only applies to library circulation records. Library records other than circulation records will therefore be subject to the same relevance standard applicable to all other business records and tangible things sought by a Section 215 order, even if such records associate users with the use of electronic books and other resources. For library circulation records, the government would have to prove that the records sought pertain to an agent of a foreign power, to a person in contact with or known to an agent of a foreign power, or to the activities of an agent of a foreign power.
Sessions’ amendments also alter proposed language that would have placed limits on NSL gag orders. One amendment eliminated the requirement that the FBI review all NSL non-disclosure orders on an ongoing basis and rescind the gag order when circumstances no longer warrant continuing it; instead, the FBI will only be required to review the facts supporting a gag order when an NSL recipient notifies the FBI that it would like the gag lifted. The second NSL amendment eliminated the court’s discretion on lifting a gag order: if the government makes the necessary showing, the court has no discretion to lift the gag; it “shall” keep it in place (previous language used “may”.)
The remaining Sessions amendments limited the minimization requirements for pen register/trap-and-trace orders.
Notably, Senator Durbin (D-IL) offered an amendment that would have imposed higher standards on NSLs. It was voted down.
Senator Feingold (D-WI) offered an amendment to impose minimization standards on the data collected by NSLs; it passed. But Senator Kyl (R-AZ) asked for, and won, an amendment that eliminated the requirement that the FBI offer “specific and articulable” facts to show that the NSL is relevant to an investigation; instead, the FBI will only be required to show “specific facts.”
(Thanks to the Center for Democracy and Technology for sharing their report on the hearing.)