The Patriot Act and Its Role in Libraries

Maureen D'Ascanio
ILS 503
November 1, 2006
Professor Bielefield/ Professor De Abreu

     The USA Patriot Act was enacted by Congress in the wake of the September 11, 2001 terrorist attacks with the principal aim of preventing and detecting future attacks.  It greatly increased communications among federal, local, and state law enforcement agencies and enhanced the scope of investigative and surveillance tools used in tracking the movements and plans of terrorist groups.  Of great concern to lawmakers and the American Public is the perception that the Act allows government officials to infringe upon the public's civil liberties.  The expediency with which the Patriot Act was enacted, on October 26, 2001 just forty-five days after the terrorist attacks, suggests that national security was the driving concern and that civil liberties may not have been given proportionate consideration.  Congress recognized the limitations of their investigation and the possibility that unchecked governmental powers may lead to abuses (Zusman and Helfand, 259).  With these factors in mind, they incorporated a "sunset provision" that would cause many of the Patriot Act's provisions to expire on December 31, 2005 (U.S. Patriot Act, 2001).
     During the initial five year term of the Patriot Act, civil liberties concerns have gained voice in the media.  Specifically, the public has targeted Section 215 of the Patriot act which gives law enforcement agencies easier access to business records.  Section 215 is an expansion of government powers previously granted under the Federal Intelligence Surveillance Act which allowed business records to be seized in connection with a terrorist investigation.  Section 215 expanded the scope of investigations inthree notable ways.  It allowed law enforcement agencies to seize not only business records, as previously allowed, but any information fron any entity, including library, medical and financial records. Second, it dropped the requirement that the FBI have actual evidence that the person whose records it sought was a member of a terrorist group or otherwise involved in terorism.  The Act now allows the FBI agents to investigate American citizens for criminal matters without probable cause, if for "intelligence purposes."  Thirdly, the use of National Security Letters (NSL), originally passed by Congress in 1986, was expanded to include issuance by any local FBI official without prior court approval if the information sought is relevant to an "authorized investiation" (McCarthy and Swire).  These "secret letters" effectively placed a "gag" order on the holders of records as they were not allowed to disclose receipt of the letter.  While the Act does not specifically name libraries, this section has derisively become known as the "libraries provision" (Douglas and Kuhnhenn).
The law effectively allows for "fishing expeditions" to see what Americans are reading in the interests of national security.  Libraries are also concerned that political organizations, perhaps as innocent as mothers concerned for the environment, may be investigated as possible "domestic terrorists."
     The concerns of libraries regarding patron privacy are well-founded according to a study by the ALA which found that at least two hundred requests were made to libraries for information on reading materials by federal, state and local agents since 2001 (Lichtblau).  Yet, proponenets for Section 215 of the Patriot Act insist that the government has always had the ability to access library records through a subpoena.  Case law supports that patrons cannot have reasonable expectations of privacy with regard to their library records.  The Supreme Court has held that such records are primarily activity records left in the hands of a third party and do not convey legitimate expectations of privacy (Blackmun).  However, the enactment of the Patriot Act has caused public concerns about the government's overreaching powers and is impacting the behaviors of libraries nationwide.  The ALA study found that forty percent of libraries responded that users had asked about changes in practices related to the Patriot Act.  Some ask if "the government can come in and ask you what I'm reading?[...}  Yes, they can, and quite frankly, I can't even tell anyone if that hapened," stated Carol Brey-Casiano, president of the ALA and director of the El Paso library system in June 2005 (Lichtblau).  Moreover, an impact which has not yet been measured quantitatively or qualitatively is the change in collection development policy due to the Patriot Act.  Five percent of libraries responding to the ALA survey indicated that they will scrutinize the books they purchase due to issues arising from the Patriot Act.  Another procedural change has been instituted at the Santa Cruz, CA library which now shreds all records of reference requests and internet usage at the end of every day (Blackstone).
     Robert Mueller, director of the Federal Bureau of Investigation, states that public fears are unfounded due to four stipulations in the Patriot Act which limits the FBI's authority and prevents violations of library patron privacy (Mueller).  The first stipulation is that the records being sought must relate to an authorized counterintelligence or counterterrorist investigation.  Second, no investigation can be launched solely on the person's First Amendment activities related to libraries.  Third, FBI activities are monitored for compliance by numerous governmental agencies, including the Senate and House Intelligence Committees, the Intelligence Oversight Board of the President's Foreign Intelligence Advisory Board, the Department of Justice's Inspector General and others which allow no latitude for "fishing expeditions."  And, fourth, agents are trained in the context of protecting the First and Fourth Amendments to the U.S. Constitiution, the rules of criminal procedure, and the Privacy Act.  With these safeguards, civil liberties, while not specified in the Patriot Act, will be protected.  Yet, the public distrusts the government's integrity indicating that the Patriot Act is flawed in in its application to libraries.
     The Patriot Act has met with two known legal challenges in libraries regarding the use of National Security Letters in procuring library records.  in February of 2005, the New Haven, Connecticut FBI office received an email which appeared to be a terrorist threat.  The FBI responded by issuing an NSL to Library Connection, a consortium of twenty-six Connecticut libraries to reveal the name, address, borrowed materials list and internet usage of the sender.  The librarians refused to turn over the information and, in turn, filed a federal lawsuit challenging the NSL as unconstitutional as it violates the right to free speech.  "Requiring recipients of letters to remain silent is a particular concern," says George Christian, director of Library Connection (Willing).  According to the FBI, letters must not be disclosed in order to keep suspects from learning that they are being watched.
     In Septemeber 2004, a still-unidentified Internet provider in New York similarly refused to release usage records to an FBI request, and filed suit challenging the constitutionality of the letters.  In both the New York and Connecticut cases, the federal district court judges ruled that National Security Letters were unconstitutional because they provide no way for a recipient to challenge them in court.  The non-disclosure requirement of the NSL was struck down as a violation of the First Amendment ensuring free speech.  In addition, the Connecticut judge granted an injunction that allowed the letter recipients the ability to disclose receipt of the letter.  In both legal battles, the government appealed the courts decisions but made concessions to the library groups and dropped their requests for information.
     Supporters of the Patriot Act point to its value in court cases which have successfully prosecuted criminals using information obtained from libraries through National Security Letters.  In the spring of 2004, the FBI while following al-Qaida suspect Mohammad Junaid Babar, noticed that he frequented the New York City Public Library to use its Internet service despite the fact that he had a home computer (Willing).  An NSL issued to the library revealed that Babar was emailing "other terrorist associates around the world," said Ken Wainstein, the U.S. Attorney for the District of Columbia.  Babar admitted to using library computers because he believed that their hard drives were erased after each use and that his records would be untraceable.  "Libraries should not be carved out as safe havens for terrorists and spies," Wainstein stated in a speech to a Congressional committee in support of the reauthorization of the Patriot Act (Willing). 
     Two hijackers involved in the September 11th attacks were proved to have ordered their airline tickets via public access computers in the state college in New Jerser (Oder).  U.S. Attorney Wainstein testified to the value of being able to access Internet accounts in libraries which fueled support for Section 215.  House Judiciary Committee Chair James Sensenbrenner said, "This newly released information demonstrates the critical importance of the Patriot Act's Section 215" (Oder).
     However, prior to the enactment of the Patriot Act in 2001, investigators were able to obtain evidence from libraries and successfully prosecute criminals.  Information obtained by federal agents under previous laws of investigation yielded important evidence to the convictions of such noted cases as Theodor Kaczynski, the so-called Unabomber, the Gianni Versace murder case in 1997, and the New York Zodiac gunman investigation in 1990 (Mueller).  Were the changes in investigatrive procedure enacted under Section 215 and specifically, the NSL, necessary in order for federal investigators to do their jobs?
     Public sentiment against the Patriot Act continues to grow in America.  According to the American Civil Liberties Union, over 400 municipalities in forty-three states have passed resolutions against sections of the Patriot Act.  House Representative Bernie Sanders (I-VT) responded to public concerns by introducing H.R. 1157, the Freedom to Read Protection Act which "allows the FBI to use the constitutional routes at its disposal, including criminal subpoenas, to get library and bookstore records.[...] it will require that investigations be focused and that the reasons behind them be subject to judicial scrutiny." (Sanders)  Spurred by lower court decisions in the New York and Connecticut legal challenges, the Justice Department proposed modifications to the Patriot Act which similarly addressed these concerns (Willing).  By December of 2005, the re-authorization of the Patriot Act appeared unlikely without several changes strengthening the protection of civil liberties.  After much debate, a modified version of the Patriot Act was re-authorized by Congress in March 2006.  Changes to Section 215 successfully won over most of the bill's opponents.  These included the ability to challenge a "gag" order after one year, information requests from libraries require the approval of a judge as was required prior to the Patriot Act, and recipients of an FBI NSL would be able to consult a lawyer without informing the FBI (Diamond).  Still at issue is the constitutionality of the gag order which has been revoked in lower courts.
     I support the enactment of the Patriot Act in the belief that national security must be our nation's highest priority.  Yet, our Constitution provides that governmental operations must not sacrifice individual rights and freedoms.  The application of the Patriot Act in libraries does not appear to fundamentally improve the ability of the government to procure library records.  However, the ability to keep an investigation and information secret would provide great benefits to an investigation into possible terrorist groups.  Libraries face concerns shared by other business entities regarding patron privacy which must be addressed by future modifications to the Patriot Act.  As the Act is currently worded, I believe that there is cause for alarm within libraries, yet, I believe the Patriot Act will evolve and include further concessions to protect civil liberties.  The courts and public outcry will fuel this evolution.

References

American Civil Liberties Union.  "List of communities that have passed resolutions."   Accessed 26 October 2006.                  
           <http:www.aclu.org/safefree/resources/18540res20040427.html.>

Blackmun, J.  Smith v. Maryland, 442 U.S. 735 (1979).  20 June 1979 Thomson-Findlaw. Accessed 28 October 2006.               <http://laws.findlaw.com/US/442/735.html>

Blackstone, John.  "Librarians Bristle at Patriot Act."  CBS News.  Accessed 28 October 2006.                 
            http://www.cbsnews.com/stories/2000/05/17/eveningnews/main554383.shtml

Brey-Casiano, Carol.  "How Patriots Act."  KRT News Service, 25 Apr 2005. Accessed 28 October 2006.                
             http://www.sirs.com

Diamond, John.  "Senate Passes Patriot Act Changes."  USA Today, 1 March 2006.  Accessed 28 October 2006.
             http://www.sirs.com

Douglas, William and Kuhnhenn, James. "Senate Reaches a Deal on Extending Patriot Act by 6 Months." KRT News           
           Service, 21 December 2005.  Accessed 28 October 2006.  http://www.sirs.com

"Fact Sheet:  USA Patriot Act Improvement and Reauthorization Act of 2005."  Department of Justice.  2March2006.                  
             Accessed 26 October 2006.  http://www.sirs.com

Lichtblau, Eric.  "Libraries Say Yes, Officials To Quiz Them About Users."  New York Times, 20 June 2005. Accessed 26
           October 2006.  http://www.sirs.com

McCarthy, Andrew C. and Swire, Peter P.  "Section 214 and 215:  Pen Register and Trap and Trace Authority Under FISA
           and Access to Business Records Under FISA (Libraries Provision)."  Patriot Debates.  Steward A. Baker and Hohn
           Kavanagh, eds.  Chicago:  ABA Publishing, American Bar Association, 2005, 47-63.

Mueller, Robert S.  "The Patriot Act Protects Library Patron Privacy."  Louise I. Gerdes, ed.  New York:  Greenhaven Press, An
           Imprint of Thomson Gale, 2005.

Oder, Norman.  "9/11 Hijackers Used Other Library:  Revelation at Hearing Fuels Defense of USA Patriot Act.  (LJ NEWS)."
            LIbrary Journal 130.10 June1, 2005:  20(2).

Sanders, Bernie.  "The Patriot Act Threatens Library Patron Privacy."  The Patriot Act Opposing Viewpoints.  Louise I.
           Gerdes, ed.  New York:  Greenhaven Press, An Imprint of Thomson Gale, 2005.

Willing, Richard.  "With Only a Letter, FBI Can Gather Private Data."  USA Today.  5 July 2005.  Accessed 28 October 2006.
           http://www.sirs.com

Zusman, Lynne K. and Helfand, Neil S.  "USA Patriot Act (2001)."  Major Acts of Congress, Vol. 3, N-Z.  Brian K. Landsberg,
           ed.  New York:  Macmilan Reference USA, 2004, 256-260.