FiRsT asSigNmENt iN fiNaL

Summary of the 1980 OECD Privacy Guidelines

Though they are not law in the United States, the privacy guidelines issued by the Organization for Economic Cooperation and Development (OECD) in 1980 are an important part of privacy debates today. The OECD consists of bureaucrats from 29 countries that work to coordinate policies with the aim of fostering international trade. The United States is a member of the OECD and one of the largest funders of its $200 million dollar annual budget. The Secretariat of the OECD is in Paris, France.

The Guidelines involve eight principles, which in different variations are often touted as "fair information practices":

1. Collection Limitation Principle: There should be limits to the collection of personal data and any such data should be obtained by lawful and fair means and, where appropriate, with the knowledge or consent of the data subject.
2. Data Quality Principle: Personal data should be relevant to the purposes for which they are to be used, and, to the extent necessary for those purposes, should be accurate, compete and kept up-to-date.
3. Purpose Specification Principle: The purposes for which personal data are collected should be specified not later than at the time of collection and the subsequent use limited to the fulfilment of those purposes or such others as are not incompatible with those purposes and as are specified on each occasion of change of purpose.
4. Use Limitation Principle: Personal data should not be disclosed, made available or otherwise used for purposes other than those specified in accordance with Principle 3 except:
   • with the consent of the data subject; or
   • by the authority of law.
5. Security Safeguards Principle: Personal data should be protected by reasonable security safeguards against such risks as loss or unauthorised access, destruction, use, modification or disclosure of data.
6. Openness Principle: There should be a general policy of openness about developments, practices and policies with respect to personal data. Means should be readily available of establishing the existence and nature of personal data, and the main purposes of their use, as well as the identity and usual residence of the data controller.
7. Individual Participation Principle: An individual should have the right:
   • (a) to obtain from the data controller, or otherwise, confirmation of whether or not the data controller has data relating to him;
   • (b) to have communicated to him, data relating to him
     • within a reasonable time;
     • at a charge, if any, that is not excessive;
     • in a reasonable manner; and
     • in a form that is readily intelligible to him;
   • (c) to be given reasons if a request made under sub-paragraphs (a) and (b) is denied, and to be able to challenge such denial; and
   • (d) to challenge data relating to him and, if the challenge is successful, to have the data erased, rectified, completed or amended.
8. Accountability Principle: A data controller should be accountable for complying with measures which give effect to the principles stated above.

Key provisions of the USA patriot Act Subject to Sunset

The USA Patriot Act

The USA Patriot Act, passed in response to the Sept. 11, 2001 terrorist attacks on the United States, is aimed at providing the tools law enforcement officials need to prevent further terrorist attacks. But almost since its passage, and especially throughout the debate over the reauthorization of provisions that expired at the end of 2005, some lawmakers and civil libertarians have contended the act infringes on the rights of U.S. citizens. When President Bush signed the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism, or USA Patriot Act, into law on Oct. 26, 2001, he said the legislation would "help law enforcement to identify, to dismantle, to disrupt, and to punish terrorists before they strike." "We're dealing with terrorists who operate by highly sophisticated methods and technologies, some of which were not even available when our existing laws were written," Mr. Bush said. "The bill before me takes account of the new realities and dangers posed by modern terrorists." The act gave the government broad new legal and investigative authority and increased power to sanction organizations and individuals who do not cooperate with investigations. It also provided some legal protections for those who assist law enforcement in its investigative work. However, in May 2002, the Foreign Intelligence Surveillance Court ruled against the Justice Department's proposed plan for greater information sharing between intelligence officials and domestic law enforcement. The court argued the proposal would eliminate congressionally mandated barriers between the intelligence community and criminal prosecutors that could allow prosecutors to "advise FBI intelligence officials concerning 'the initiation, operation, continuation, or expansion of [Foreign Intelligence Surveillance Act] searches or surveillance'" -- a change from previous procedure. A federal appeals court, however, overturned the ruling in November 2002, stating that the U.S. government has an expanded authority to use wiretaps and other surveillance techniques in its efforts to track suspected terrorists. The appeals court ruling said that expanded powers to wiretap those suspected in foreign terrorist operations -- including U.S. citizens -- outlined in the Patriot Act do not violate the Constitution. Lawmakers attached sunset provisions to many of the Patriot Act's most controversial provisions, requiring Congress to reauthorize them within four years. In late summer 2005, the House and Senate began to debate renewing those provisions. Democratic lawmakers saw this as an opportunity to clarify the Patriot Act and offer more protections for civil liberties. Republican lawmakers concentrated their efforts on making permanent the provisions that were set to expire. The reauthorization The Patriot Act was reaffirmed March 10, 2006 after nearly nine months of debate in the House and Senate. The provisions in the act, set to expire on Dec. 31, 2005, were temporarily extended twice to give lawmakers more time to debate the bill. Several events delayed the reauthorization, including Hurricane Katrina battering the Gulf Coast in late August 2005, diverting attention to the immediate needs of residents there. And then in December 2005, a New York Times report revealed a program allowing the National Security Agency to wiretap those suspected of potential terrorist activities within the United States without warrants from the FISA court. The warrentless wiretapping program galvanized Democrats who opposed the bill to draw attention to what they considered civil liberties rollbacks in the legislation. The expiring provisions included one that let federal officials obtain "tangible items," such as business records, from libraries and bookstores, in connection with foreign intelligence and international terrorism investigations. Other provisions clarified that foreign intelligence or counterintelligence officers should share information obtained as part of a criminal investigation with counterparts in domestic law enforcement agencies. Yet other portions were designed to strengthen port security by imposing strict punishments on crew members who impede or mislead law enforcement officers trying to board their ships. A compromise version of the bill aimed to include more civil liberties protections, such as language saying people who receive subpoenas granted under the Foreign Intelligence Surveillance Act for library, medical, computer and other records can challenge a gag order in court. Not all senators were on board, but a filibuster attempt by Sen. Russ Feingold, D-Wis., the only senator to vote against the original Patriot Act, failed, clearing the way for the final reauthorization vote. President Bush signed the reauthorization bill mere hours before the temporary extension would have ended. "The Patriot Act has accomplished exactly what it was designed to do," he said at the bill-signing ceremony. "It has helped us detect terror cells, disrupt terrorist plots and save American lives. The bill I sign today extends these vital provisions. It also gives our nation new protections and added defenses." The reauthorization made permanent 14 of the 16 provisions that were scheduled to expire March 10, 2006. California Rep. Jane Harman, the ranking Democrat on the House intelligence committee, lauded new measures that would "[bar] the government from using National Security Letters to obtain records from libraries functioning in their traditional roles," and noted that "only libraries that also function as Internet service providers are now covered." The provisions regarding the government authority to conduct "roving wiretaps" of targets with multiple phones or e-mail devices, and the government's powers to seize business records with the FISA court's approval are now set to expire Dec. 31, 2009. The reauthorization also included new tools designed to help law enforcement stop the trafficking of methamphetamine, such as tracking the purchase of over-the-counter ingredients and increasing federal penalties for smuggling and selling the drug. Specifically, the renewed provisions include: Section 206 to create so-called roving wiretaps, which allow government agents to tap the devices associated with a suspected terrorist rather than a single device The reauthorization holds agencies to a slightly stricter standard with regard to when roving wiretaps can be used, requires reports to congress on their use, and sets a sunset expiration of four years. Section 213 to authorize government agents to obtain "sneak and peek" warrants that allow them to enter and search a premises without immediately notifying the owner, provided nothing is removed Under the reauthorization, officials must notify the person whose premises is being searched within a reasonable time that is not to exceed 30 days unless a longer time is expressly approved by the court issuing the warrant. Section 215 to allow government agents to obtain business records with permission from the Foreign Intelligence Surveillance Court Reauthorization requires agents to present the FISA court with new data proving the how the evidence sought will apply to the relevant investigation and affords greater protections for library, medical, and educational records. It also provides the party forced to disclose the business information the right to seek the advice of an attorney and establishes a sunset expiration of four years. Section 505 to provide for the use of National Security Letters, a type of subpoena that forces the party being subpoenaed into a non-disclosure agreement severely limiting their legal rights The lack of judicial review afforded by NSL worried many lawmakers, and the reauthorization gives a specific right to legal counsel to the recipients of an NSL, and the right to challenge it in court. It also states that libraries cannot be subjected to an NSL, and that the government must present a report to Congress each year on the use of NSL. These controls were deemed necessary in November 2005 when The Washington Post revealed that the FBI was issuing 30,000 National Security Letters annually. Future of the Patriot Act Senate Judiciary Committee Chairman Arlen Specter, R-Pa., said at the time of the act's renewal that he had deep reservations about civil liberties impacts, but he voted for the compromise measure, calling it "an acceptable balance." Specter and other moderate Republicans said the passage of the bill was the first step toward analyzing the Patriot Act and drafting legislation to replace it. He has suggested revamped measures to: -- Throttle the use of National Security Letters to subpoena evidence by eliminating the one-year period before gag orders on NSL could be challenged in court; -- Demand more evidence tying a party to foreign terrorists before records could be obtained from businesses, libraries, hospitals and doctors' offices, and nonprofits; and -- Require that the target of a "sneak and peek" search warrant be notified within seven days of its execution.

Reauthorization History

Three provisions of the USA PATRIOT Act will expire by the end of the year, triggering consideration of reauthorization legislation. The expiring provisions are authorizations for roving wire taps, the “lone wolf” measure, and orders for tangible things (Section 215, commonly referred to as the “library provision”).

On September 17, 2009, Senators Feingold (D-WI) and Durbin (D-IL) introduced the Judiciously Using Surveillance Tools In Counterterrorism Efforts (JUSTICE) Act to address problems with surveillance laws that threaten the rights and liberties of American citizens.

On September 22, Sen. Patrick Leahy (VT-D) introduced S. 1692, the USA PATRIOT Act Sunset Extension Act of 2009. Hours before the Senate Judiciary Committee’s first mark-up of the S. 1692, a bill negotiated by Leahy and Dianne Feinstein was substituted in place of the original S. 1692. The substitute bill substantially weakened the reforms the library community has sought relevant to Sec. 215 and national security letters.

During the mark-ups, several senators attempted a number of amendments; none of the amendments that would have improved protection of civil liberties passed.

The substitute “Feinstein” bill was passed by the Judiciary Committee with an 11 to 8 vote at the second markup on October 8. The ALA continues to seek reforms that would:

• Require law enforcement officials to show individualized suspicion that records or other items being sought pertain to a foreign power or agent, a person in contact with a suspected agent, or a suspected agent who is the subject of the investigation; and
  
• Require records other items being sought to be described with sufficient particularity to allow them to be identified – reducing the danger that the FBI will engage in fishing expeditions into personally identifiable information in library or bookstore records; and
  
• Required the Foreign Intelligence Surveillance Act (FISA) Court to make a finding that these facts have been sufficiently demonstrated; and
  
• Show cause for a FISA court to approve a gag order; gage orders will expire at the end of six months unless cause is shown to reauthorize them; and
  
• Allow a recipient of a FISA Section 215 records-search order to consult with an attorney or others for help responding to the request; and
  
• Guarantee a recipient the right to challenge any gag order; and
  
• Ensure due process for any recipient challenging a search or gag order; and
  
• Set a sunset date for Section 215 of no more than four years, to ensure ongoing oversight and assessment of the impact of this provision on civil liberties; and
  
• Intensify oversight of the Section 215 and national security letters provisions of the USA PATRIOT Act and other laws that limit the privacy rights of library users, library employees and the general public.