June 01, 2011

Washington News Brief

LAW LIBRARY OF CONGRESS: The Library of Congress, which now houses more than 147 million items in its law library and other collections, is running out of space, and in response the ABA is recommending that funding be provided for construction of Module 5 (Mod5), the fifth of 13 planned archival facilities at Ft. Meade in Maryland. In a May 4 letter to Reps. Ander Crenshaw (R-Fla.) and Michael Honda (D-Calif.), the chair and ranking member of the House Appropriations Subcommittee on Legislative Branch Appropriations, ABA Governmental Affairs Director Thomas M. Susman warned that the Law Library of Congress is projected to run out of shelf space in just two years if Mod5 is not built. Susman explained that if Congress does not provide the necessary resources, the Library and Law Library will be forced to consider costly alternative off-site storage or allow their collections to become incomplete and out of date. The deterioration of the Law Library collection – particularly the foreign law collection – would not likely be rectifiable, Susman said. He emphasized that the laws and legal resources from many nations of interest to Congress, particularly those that do not post official versions of their laws online, are at best difficult and sometimes impossible to acquire within a year or two after initial printing. “These collections are invaluable tools for, among other things, empowering American entrepreneurs and corporations to enter and comply with the law in foreign markets and bring international business to ours,” he said. He noted that the urgency of the storage crisis has caused the ABA and its Standing Committee on the Law Library of Congress to set aside its usual request for funding to eliminate the 554,000-volume backlog of unclassified documents in the Law Library and the conversion of approximately 4.8 million pages of foreign nations’ official legal gazettes to microfilm. “Without the timely construction of Mod5, these other projects will be dwarfed by new and more costly problems,” Susman concluded.

SUNSHINE IN LITIGATION: The Senate Judiciary Committee approved a bill May 19 by a 12-6 vote that the ABA maintains would “impose additional unnecessary requirements on, and restrict the discretion of, federal courts in a way that will only increase the time and expense of litigation.” S. 623, sponsored by Sen. Herb Kohl (D-Wis.) and known as the “Sunshine in Litigation Act of 2011,” would amend Rule 26 (c) of the Federal Rules of Civil Procedure, which currently gives judges authority to determine when to enter a protective order and the scope of the order in light of the particular facts and circumstances of each case. The bill would require judges to make a particularized finding of fact that a discovery protective order would not restrict the disclosure of information relevant to the protection of public health and safety. During markup, the committee approved substitute language that would ensure that information related to national security would not be subject to disclosure and that the bill’s provisions would not apply retroactively. In correspondence to the committee in early May, ABA President Stephen N. Zack pointed out that the U.S. Judicial Conference of the United States has found no significant problems indicating that protective orders have impeded access to information that affects public health or safety. The association also opposes the bill because it circumvents the Rules Enabling Act, the procedure established by Congress to make sure that changes to the federal rules are thoroughly reviewed. There has been no action in the House on similar legislation, H.R. 592, which is pending in the House Judiciary Committee.

USA PATRIOT ACT: President Obama signed a bill May 26 that extends for four years the “library,” “lone wolf” and “roving wiretap” anti-terrorism provisions in the USA PATRIOT Act that were set to expire May 27. The legislation, S. 990 (P.L. 112-14), passed by a 72-23 Senate vote and a 250-153 House vote after a compromise was reached to reauthorize the provisions for four years rather than approving a longer authorization through 2017 or making the provisions permanent. The “library” provision allows the government to seek surveillance orders from the Foreign Intelligence Surveillance Court for tangible things, including medical and library records, that the government states are related to a terrorism investigation. Under the “lone wolf” provision, the government may apply to the court to conduct surveillance on suspected terrorists who are not connected to larger terrorist organizations. The “roving wiretap” provision authorizes court-approved roving wiretaps of terrorism suspects using multiple communications devices. Prior to passing the bill, the Senate rejected proposed amendments to: clarify that the authority to obtain information under the USA PATRIOT Act does not include authority to obtain certain firearms records; and limit suspicious activity reporting requirements to requests from law enforcement agencies. The ABA urges Congress to thoroughly review executive branch powers under the USA PATRIOT Act and to conduct regular oversight of the use of the Foreign Intelligence Surveillance Act.

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