Association of Research Libraries (ARL®)

The RESTORE Act literally restores fundamental privacy rights for US citizens wherever they may be in the world. The act prohibits warrantless surveillance of US citizens abroad. That is a very positive step.

Most important for libraries, the RESTORE Act closes the door to warrantless searches of libraries in the US on the mere showing that information concerning some target abroad might be present. All such searches must be approved by the FISA court. This too is a positive step in the right direction.

However, warrantless surveillance of non-US persons abroad using facilities in the US to communicate is still permitted. To the extent a library in the US provides remote communications or access to communications services to non-US users abroad, such communications still could be subject to warrantless seizure or interception from facilities in our libraries. Our position is simple—the government should not enter a library in the US or access facilities used by libraries to conduct electronic surveillance on any library user, regardless of where the user happens to be when using library services, without an order from the FISA court. Period.

This is not a hypothetical concern. US universities have numerous educational programs throughout the world, and it is possible, if not likely, that student and faculty library users at those foreign campuses of US institutions will be relying on servers or routers that reside in the stateside facilities.

At the same time, the issue is not likely to arise so often that obtaining FISA court approval would impose reasonable burdens on or create obstructions to terrorism or foreign intelligence investigations.

This provision is necessary to ensure that the Department of Justice heeds Congress’s intent. Past efforts to protect libraries from federal demands for information without court supervision failed because the statute’s language was not sufficiently explicit. Congress included in the Patriot Act Reauthorization clear statements in the Congressional Record that under the amended Patriot Act libraries do “not fall under the purview of the NSL provision”; however, because the language of the statute was not explicit, the FBI took the position that “Section 5 did not actually change the law.” Id.

This act is a very positive step, particularly in regard to the Congressional oversight mandated in the RESTORE Act and requirements for reporting and auditing of agency use of these powers. It is especially positive to hear Congress overtly mandate that no other form of surveillance may be conducted except as authorized in the act. But it doesn’t go far enough to protect library users around the globe.

The following language is proposed as a means to resolve our concern, the addition of a single caveat to Section 105B: “For purposes of this section, the term “communications provider” does not include a library (as that term is defined in section 213(1) of the Library Services and Technology Act Act (20 U.S.C. 9122(1)).