On August 19, Attorney General Ashcroft began a national tour to defend the USA PATRIOT Act. The complex 342 page law, passed less than 7 weeks after the events of September 11, 2001, gives law enforcement wide authority to monitor citizens. It also expands governmental powers under the Foreign Intelligence Surveillance Act (FISA) of 1978,
breaking down barriers between foreign and domestic surveillance.
Section 215 of the law allows agents to obtain a search warrant without having to demonstrate “probable cause” or the existence of specific facts to support belief that crime has been committed or that items are evidence of crime. An agent needs only to claim he or she believes the records requested may be related to terrorism or intelligence activities.
Once a search warrant is served–i.e, a business is asked to provide information–that business
may not tell anyone about the warrant, not even the person about whom information was requested.
Authorities may find out what someone has purchased at a bookstore, what a person checked
out from the library or how an individual may have used the Internet at their local public library–all in the name of preventing terrorism. Librarians themselves may not know that records are being used since many libraries’ records are kept on computers managed by others–by a city manager or a campus computing center, for example. Under the USA PATRIOT Act, law enforcement officials are less accountable for their actions, library records are more vulnerable and domestic and international issues become blurred.
Librarians see the USA PATRIOT Act as an attack on fundamental beliefs of the profession.
The Act unnecessarily lowers the legal standard for obtaining patron records, records that are deemed confidential under the law of 48 states. Illinois law, for example, states “The registration and circulation records of a library are confidential information. Except pursuant to a court order, no person shall publish or make any information contained in such records available to the public.” The law also exempts patron records from Freedom of Information Act (FOIA) requests.
Using library circulation records as a way to hunt terrorists assumes the questionable connection between what someone reads and how one acts. It would be foolish, for example, to assume the millions of readers of Tom Clancy novels of the recent The Last Jihad are reading these a manual for terrorism. The greater danger is that readers will be nervous to inquire about politics, history or current events, lest their intellectual curiosity make them suspects in terrorist investigations. A librarian, Jamie LaRue, tells the story of his own search for information shortly after 9/11/01. To try to understand what was happening and why, LaRue went to various websites about terrorism, Osama Bin Laden and even to
pornography sites, after reading on CNN that terrorists were hiding instructions in such places. He reflected afterward that just such a search would make him a prime candidate to be investigated as a potential terrorist.
The Freedom to Read statement of the American Library Association begins “The freedom to read is essential to our democracy…We, as citizens devoted to reading and as librarians
and publishers responsible for disseminating ideas, wish to assert the public interest in the preservation of the freedom to read.” It has been adopted by a number of other groups
including the American Association of University Professors, the American Society of Newspaper Editors, the Anti-Defamation League of B’nai B’rith and the National PTA. The
statement concludes, “We do not state these propositions in the comfortable belief that what people read is unimportant.
We believe rather that what people read is deeply important; that ideas can be dangerous; but that the suppression of ideas is fatal to a democratic society. Freedom itself is a dangerous way of life, but it is ours.”
Libraries also worry they may become the target of a court order requiring the library to cooperate in the monitoring of a user’s electronic communications. Under Section 216 of the
PATRIOT Act, libraries that provide access to the Internet and email service to patrons may be required to monitor a user’s electronic communications sent through the library’s computers or network. Because computers in libraries are often the only source of Internet access for the poor, librarians also worry that surveillance under the USA PATRIOT Act may differentially affect the poor. Librarians have become activists in fighting provisions of
the USA PATRIOT Act. Some have put signs in their libraries, warning users of these provisions. Santa Cruz Public Library, for example, posts the following:
WARNING: Although the Santa Cruz Library makes every effort to protect your privacy, under the federal USA PATRIOT Act (Public Law 107- 56), records of the books and other
materials you borrow from this library may be obtained by federal agents. That federal law prohibits library workers from informing you if federal agents have obtained records about
you. Questions about this policy should be directed to Attorney General John Ashcroft, Department of Justice, Washington, D.C. 20530.
A website provides suggestions of signs libraries might use warn patrons while “respecting” the gag rule that prevents staff from informing a user if the FBI has asked for the user’s library records. For example, The FBI has not been here (watch closely to see if this sign is removed).
Librarians and the American Library Association have been active in informing the public about the USA PATRIOT Act and in working on legislation to overturn some of its provisions.
In a recent survey by the Library Research Center at the University of Illinois, 20 percent of public librarians said that if law enforcement asked for information about one of their users they probably or definitely would violate the gag order by notifying someone of the request.
Public opposition to the USA PATRIOT Act grows. To date 152 communities and 3 states (Alaska, Hawaii and Vermont) have passed legislation opposing the USA PATRIOT Act as a
threat to the civil rights of the residents of their communities.
On March 6, 2003, Democratic Representative Bernie Sanders has proposed the “Freedom to Read Protection Act” – HR 1157. It would return to pre-PATRIOT Act standards the standards for the FBI to obtain FISA court orders and warrants to investigate library patrons and bookstore customers. In July, the House of Representatives approved (309-118) a Republican sponsored amendment to the Sanders’ bill to block the Justice Department
from using any federal funds for broad searches.
Other legislation includes the Surveillance Oversight and Disclosure Act (HR 2429) that would require regular disclosure to Congress by the Attorney General about authority he has granted under the USA PATRIOT Act.
On July 30, 2003 the American Civil Liberties Union filed suit on behalf of six advocacy and
community groups from across the country whose members and clients believe they are currently the targets of investigations because of their ethnicity, religion and political associations.
The lawsuit names Attorney General John Ashcroft and FBI Director Robert Mueller as the
defendants. In a report, Unpatriotic Acts issued at the same time, the ACLU stated that Section
215 of the PATRIOT Act violates constitutional protections against unreasonable searches and seizures as well as the rights to freedom of speech and association.
The opposition is having an effect on the Attorney General’s office. On August 19, Ashcroft began a public relations tour–not speaking to the public, but to law enforcement agents. Ashcroft is insisting on the importance of the USA PATRIOT Act and he minimizes the threats to civil liberties caused by enforcement. The PR campaign includes a Department of Justice website called “Preserving Life and Liberty” (http://www.lifeandliberty.gov/) with a header of a section of the Declaration of Independence. Among the assertions on the website is that the USA PATRIOT Act makes “only modest, incremental changes in the law. Congress simply took existing legal principles and retrofitted them to preserve the lives and liberty of the American people from the challenges posed by a global terrorist network.” It mercifully does not have an attached audio file of the Star Spangled Banner.
Websites maintained by the American Library Association (www.ala.org), Bernie Sanders (http://bernie.house.gov/) and the ACLU (http://www.aclu.org/ ) provide rich and up-to-date information about opposition to the USA PATRIOT Act.
Leigh Estabrook is professor of Library and Information Science and of Sociology at UIUC. She currently directs the Library Research Center of the Graduate School of Library and Information Science and oversees a series of studies on the impact of the USA PATRIOT Act on libraries.