‘‘(B) if the records sought pertain to libraries (as defined in section 213(1) of the Library Services and Technology Act (20 U.S.C. 9122(1)), including library records or patron lists, a statement of facts showing that there are reasonable grounds to believe that the records sought—‘‘(i) are relevant to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2) to obtain foreign intelligence information not concerning a United States person or to protect against inter-national terrorism or clandestine intelligence activities; and ‘‘(ii)(I) pertain to a foreign power or an agent of a foreign power; ‘‘(II) are relevant to the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or ‘‘(III) pertain to an individual in contact with, or known to, a suspected agent of a foreign power;
This language requires that before investigators demand libraries turn over records, they must first prove that the person to whom the records pertain is either an intelligence investigation suspect, or is in contact with one. So for library records, and library records only, the new language requires some showing of reasonable cause first before the investigators can request the information.
During the hearing, Ben Cardin asked why there was a special standard for libraries (at about 108:30 in the hearing). Kyl offered this explanation for the exception (one he disagrees with):
Kyl: There was such a–I would say–unwarranted and irrational, and I certainly don’t apply that word to anyone here but from some folks out in the country–concern about library records as the result of blogs and so on, it was simply easier to say, okay, cut it loose, it’s important but not that important to hold up the rest of the legislation.
In order to get rid of the political argument that was, essentially, irrelevant in almost all investigations, it was simply easier to cut that lose and have a different standard for it.
Durbin then calls Leahy and Kyl on their cynicism, arguing that the exception just for libraries proves that the underlying principle of Section 215, as written, is unsound.
Durbin: Senator Kyl raised an interesting question. Why aren’t more people complaining about this if it is such a problem? Read more