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Thursday, Nov 26, 2009
The USA PATRIOT act gives the government broad new powers to seize library and bookstore records -- and prevents librarians and booksellers from complaining.
Mar 6, 2002 | Libraries might seem an unlikely place to hunt down terrorists. But in the wake of Sept. 11, authorities learned that some of the al-Qaida hijackers had used library computers to communicate with one another and research the attacks. The FBI obtained court orders for Internet sign-in sheets and computer hard drives from two Florida public libraries, and in the following months gathered information from other libraries in Florida, Maryland and Virginia as part of investigating terrorist activities in the United States.
But even though the government was able to get what it wanted from those libraries under existing laws, intelligence agencies argued they needed more sweeping powers. The result was the passage last October of the USA PATRIOT Act (USAPA), an acronym for the unwieldy "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act." USAPA, of course, deals with much more than libraries -- it amends more than 15 statutes, including the Electronic Communications Privacy Act, the Foreign Intelligence Surveillance Act, the Cable Act, and the Federal Wiretap Statute. The new law gave the government unprecedented authority to conduct secret searches, monitor e-mail and Internet usage, share information between intelligence agencies and seize personal information with only nominal judicial oversight.
And the new USAPA powers will also reach into libraries and bookstores, if investigators believe that records of what someone is reading and researching are relevant to an anti-terror investigation. Already librarians say they've received requests for records under USAPA, but they are prohibited from making such demands public; they can't reveal who made the requests and what they asked for, or keep track of such requests in any way.
Civil libertarians say USAPA gave the government authority to bypass privacy rights without enough checks and balances to assure that the new powers are being used appropriately. In fact, the legislation amended several laws that were put in place to prevent the type of government surveillance scandals that made news in the 1960s and 1970s, such as the FBI's widespread, illegal surveillance of American citizens and domestic dissent groups. Although USAPA proponents claim that the new law is aimed at foreign nationals, many of the changes apply to American citizens as well. Librarians and booksellers worry that this expansion of the surveillance laws will ultimately have disastrous consequences for civil liberties and dampen intellectual freedom by having readers thinking twice about what they check out or buy.
Chris Finan, president of the American Booksellers Foundation for Free Expression (ABFFE), says that the USAPA is "an open door for government to browse into our records."
USAPA supporters say civil libertarians and privacy advocates are hand-wringing as usual, missing the fact that the USAPA gives the government what it needs to combat terrorism while respecting Americans' privacy rights. "There won't be any problems if the government obeys the law and keeps within the restrictions," says Michael Woods, former head of the FBI's National Security Law Unit.
But the FBI has had uneasy relations with librarians in the past. In 1987, the American Library Association (ALA) received a call from a librarian in New York who said that two FBI agents had been asking staff about what citizens of "hostile sovereign nations" were reading. During the months after the story broke in the press, the ALA was inundated by calls from libraries around the country that had received similar visits.
"We documented 23 cases," says Judith Krug, who since 1967 has been fighting for library privacy rights as director of intellectual freedom division of the ALA, an advocacy group with over 63,000 members. "In retrospect, it was absolutely bizarre. There's a history of people attempting to use circulation records to impugn motives because of what people have read, but that took the prize." Soon after, the FBI discontinued its "Library Awareness" program, which Krug and others were shocked to find out had been going on for decades.
Traditionally, book purchases and library records have been protected from law enforcement searches in ways that other records are not. Libraries, which have been fighting off attempts to view their records for decades, have statutes in 48 states and the District of Columbia prohibiting librarians from releasing lending information without proper legal authority. In fact, most lending software sold during the past eight years automatically disengages the borrower's name from the book or other material once it's returned, though that information remains in backup logs until the logs are erased. Although there are no specific statutes protecting book sales records, the courts have required that law enforcement demonstrate a "compelling need" to the court before issuing or enforcing subpoenas or search warrants for bookstore records.
USAPA dramatically changes the way law enforcement accesses bookstore and library information. The law's Section 215 greatly expands the authority of the Foreign Intelligence Surveillance Act (FISA) and allows investigators to use it to gather business records -- which include library circulation information and bookstore purchases -- by merely certifying that the records are relevant to a foreign intelligence investigation. FISA warrants are issued by a special judge in a secret FISA court and prohibit the participants from telling anyone besides an attorney that they have been contacted for the information.
Theresa Chmara, an attorney who has written amicus briefs for the ALA and ABFFE in other First Amendment cases, says the USAPA largely removes booksellers' and librarians' ability to contest the legality of these requests and makes it almost impossible to monitor how, and how often, the searches are being conducted.
"Any time the public believes what they're borrowing or reading will be under surveillance, it will have them thinking twice," Chmara says. "It'll go through people's minds if they want to learn more about the Taliban or Islam as they're reaching for the shelf."
