SCN: USAPA

[Steve]

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===============


The USA PATRIOT act gives the government broad new powers 
to seize library and bookstore records -- and prevents librarians 
and booksellers from complaining.  

(Christopher Dreher, Salon)---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."  

No one knows how many USAPA requests have been made since 
USAPA became law in October, because of the built-in gag order. 
But a few individual librarians around the country admit they've 
received requests. Gary Strong, director of the Queens, N.Y. 
library -- which has the largest circulation of any U.S. library -- 
confirms that he has received USAPA requests, but he says the 
law prevents him from revealing more than that.  

"It makes you realize your library is very much involved in what's 
going on," says Strong, who recently spoke at an ALA meeting 
about how librarians should comply with USAPA.  

The ALA's Krug says that there has been a noticeable increase in 
requests for information about privacy issues from libraries around 
the country. Before Sept. 11, Krug says she fielded an average of 
one call a month from a librarian or library asking about privacy 
issues, but in the months after Sept. 11 she was getting two or 
three a week. 

The ALA sent out information to librarians about what to do if they 
received a USAPA request and offered to put librarians in touch 
with an attorney without asking questions and jeopardizing the 
librarian's compliance with the gag order. Krug says that since 
Sept. 11 she has received a few of these requests for lawyers, but 
beyond that she doesn't know how many libraries have been 
approached.  

USAPA's reach extends beyond bookshelves. After home and 
work, the library is the third leading place where Americans access 
the Internet: over 95 percent of libraries offer Internet access, and 
a recent study of Internet usage by the U.S. Department of 
Commerce shows that a growing number of people use library 
computers for personal use instead of places like work, where 
many companies monitor their employees usage. 

Also, libraries are one of the foremost places that bridge the so-
called "digital divide," offering people who do not have Internet 
access a place to do research, brush up their job skills, or just 
browse. Libraries even attract those who already have the Internet 
because of the search and support help that librarians provide.  

"The means for providing information have changed dramatically in 
terms of providing technology access," says Mary Minow, a 
Librarylaw.com consultant who is working on a book about library 
law for the ALA. "There are lines in most libraries for people to get 
onto the terminals. The technology is bringing in a wide range of 
people, people that have never been into the library before."  

USAPA expands the use of "roving wiretaps," Minow explains, 
which in addition to allowing the monitoring of phone conversations 
also permits tracking of a suspect's Internet use on whatever 
computer they use, including library computers. What disturbs 
librarians is that once the order is placed, the Internet monitoring 
indiscriminately records the Net usage of other users at the same 
time.  

But perhaps the biggest change in Internet surveillance is the 
expansion of "pen / trap" orders, an investigatory tool originally 
designed to give police a list of phone numbers a suspect called 
and received. Updated by the USAPA to catch up with advances in 
technology, pen / trap orders now cover electronic 
communications, which is especially troubling to civil libertarians 
because to use a pen / trap, authorities need only certify that such 
surveillance is relevant to an ongoing investigation -- and it gives 
law enforcement access to a wealth of information far more 
comprehensive than a list of phone numbers. It allows authorities 
to gather all information about e-mail messages (but not their 
actual content), URLs, sites visited, and other specific information 
about Internet usage. 

But unlike wiretap orders, which after a certain period of time 
compel authorities to disclose to the suspect that he or she had 
been under surveillance, there is no similar requirement for pen / 
trap orders. This means that law enforcement could collect and 
keep information about someone's online activities without ever 
telling the person who was monitored. (The only way someone 
would find out is if they were later charged with a crime and the 
evidence was used in court.) Minow says the implication of the 
USAPA for electronic freedom is "a patriot missile, not a patriot 
act."  

Librarians worry that Sept. 11 will have other impacts on inquiry 
and intellectual freedom. The United States Geological Survey, for 
instance, recently ordered federal depository libraries to destroy a 
CD-ROM with information about national water systems. Francis 
Buckley, superintendent of documents at the U.S. Government 
Printing Office, says it was the first time he knew of that an order to 
destroy information to keep it from the public was sent out. After 
the order, FBI agents in Arkansas visited five libraries to make sure 
the CD-ROM was destroyed -- one librarian had only taken the CD-
ROM out of circulation, and the agents confiscated it.  

Lynn Bradley, director of government relations at the ALA, says 
that although the order to remove one CD-ROM is not cause for 
widespread alarm, "if there is an increase in removed information 
or if the updates or certain records or publications were not being 
put out anymore, that would be a problem."  

In addition, the government has removed large amounts of 
information from public Web sites. "The scope of what has been 
removed is vast, and it has been done without any policy guidance 
or careful vetting," says OMB Watch, a nonprofit watchdog group 
that promotes government accountability and has monitored what 
types of information have been removed since Sept. 11. OMB 
Watch also notes that other access to public information -- such as 
public reading rooms -- is now more restricted. Bradley says the 
ALA is organizing a group of librarians to monitor the government 
restriction of information, to see what information is being taken 
down and if and how the information is later returned.  

Strong says that the most important thing librarians can do to 
protect privacy rights is to make sure they understand the new 
laws, have their privacy policy up-to-date, and know what to do if 
the FBI contacts them. "It doesn't come home until a marshal or the 
FBI shows up with orders," says Strong. "Then it becomes real, but 
by that time it's too late to prepare."  

The FBI has made efforts to explain to librarians how it would use 
the new powers granted by the USAPA. At a Jan. 19, 2002, ALA 
meeting in New Orleans, the bureau sent Michael Woods, at that 
time the head of the bureau's National Security Law Unit, to speak 
to librarians about "compliance with the USA PATRIOT Act." 
Woods told Krug, Bradley, Strong and dozens of other librarians 
what the FBI would ask of librarians and how the librarians should 
respond to such requests. He stated that the days of badge-
flashing and demanding records was over and that the agency 
would take care to follow all legal guidelines in their requests for 
information.  

Bradley says whether this proves to be true remains to be seen. 
"The jury's out on this," she says, "But there are a lot of people 
with long memories who have experienced firsthand inappropriate 
invasions and incursions of library records. But I'd like to think it's a 
new day."  

A month after speaking to the ALA, however, Woods took a new 
FBI assignment, and he no longer heads the bureau's National 
Security Law Unit. Still, he doesn't foresee much interaction 
between libraries and intelligence agencies. "From an FBI 
perspective, it's very rare for the FBI to interest themselves in 
libraries and rarer still to proceed to any point" where the new 
freedoms granted by the USAPA might come into play, Woods 
says, and he insists the act has enough safeguards to protect 
Americans' privacy rights.  

But many don't trust the FBI's claim that it will handle its new 
powers responsibly. The Electronic Privacy Information Center's 
annual report on civil liberties and electronic privacy has year after 
year named the U.S. government as one of the worst offenders 
when it comes to trying to bypass electronic privacy laws. And the 
American Civil Liberties Union's Web site documents a long history 
of FBI surveillance abuses over the past decades. "They don't 
have a good enough reputation to say, 'Don't worry, trust us,'" says 
Rachel King, legislative counsel for the ACLU's national office. 
"They can't be trusted. They've managed to offend the left, the 
right, and everyone in between."  

That history is what worries librarians and booksellers. "This law 
has the potential to be very harmful; that's why we have to be 
cautious," says Bradley. "People ask, 'Why are you interested in 
privacy when thousands of people were killed and there are 
soldiers at risk?' At the same time, we have in the United States a 
Constitution, a Bill of Rights, and all sorts of laws protecting 
privacy. One of the reasons we're fighting is to protect these rights 
that these people attacked us for in the first place. We don't want 
to have to relearn some of the mistakes of the past. Hopefully the 
FBI remembers and realizes that it's a new day."  


Copyright 2002 Salon.com





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