USA Patriot act allows easier access to library records

Dan Haugen

It’s been one year to the day since Congress approved the USA Patriot Act, the sweeping legislation that granted federal investigators broad new powers to combat terrorism.

One of the act’s lesser-known provisions made it easier for federal investigators to access records kept by libraries, including the University’s.

As a result, librarians have not quieted their criticism of the act. Fueling their persistence is the Justice Department’s refusal to disclose exactly how the new powers have been used at libraries.

“To my knowledge, we haven’t had any Patriot act-related inquiries at the University libraries yet,” said associate librarian Eric Celeste. If federal agents had made an information request, however, the Patriot act would prohibit Celeste from talking about it.

A secret court

the Patriot act, passed overwhelmingly by both the House and Senate to the ire of many civil libertarians and privacy advocates, amended numerous existing statutes. The amendments of most concern to librarians were those made to the Foreign Intelligence Surveillance Act.

The Cold War-era legislation streamlined the search warrant process for federal investigators when their subjects were suspected of espionage. A secretive 11-judge panel known as the Foreign Intelligence Surveillance Act Court rules on the search requests, and unlike conventional courts, it does not require probable cause before granting a warrant.

The Patriot act freed federal investigators to use the surveillance act option more often. Maurice Freedman, president of the American Library Association, said the surveillance act is no longer limited to use against noncitizens and that the breadth of what can be seized has expanded to include medical, educational and library records.

Freedman said he is concerned the changes might lead to a chilling effect, and that’s why his organization – whose 60,000-plus members include the University’s library system – has been steadily lobbying against the legislation since last fall. Fighting it has been a challenge, though, Freedman said, because so much of the process is veiled in secrecy.

Prior to the Patriot act, investigators needed a traditional court order or subpoena before it could obtain records from a library. That would require probable cause against the person whose record was being searched, and even if an investigator demonstrated that to a court, the library still had the opportunity to appeal.

“With the USA Patriot Act and its amending of FISA, the FBI only has to show a secret court that what they were searching for is relevant to a terrorist investigation,” Freedman said. “It’s in a secret court. The library has no appeals process. The search warrant can be served immediately. There’s no due process.”

Besides trying to spread awareness, Freedman said the American Library Association is also seeking a library that would be willing to take part in a legal challenge against the act’s amendments.

“This law implicitly says that you can make a connection between what somebody is reading and what they’re going to do. We fundamentally oppose that. There is no necessary connection. I can read ‘Mein Kampf’ without being a Nazi and wanting to go out and kill Jews,” Freedman said.

Little disclosure

little is known about how the FBI has used its new powers. The act states that “no person shall disclose to any other person that the FBI has sought or obtained tangible things.” That means librarians who speak up about searches could face fines or even jail time.

The House Judiciary Committee in June wrote a letter to Attorney General John Ashcroft inquiring about how investigators have used the Patriot act powers so far.

The attorney general’s response, though over 60 pages long, leaves much unanswered.

In response to a question about library searches, the document states: “Such an order could conceivably be served on a public library. Ö The number of times the government has requested or the court has approved requests Ö since passage of the Patriot act is classified.”

The most comprehensive information available on the act’s impact comes from a University of Illinois survey conducted in December and January. Its Library Research Center sent questionnaires to more than 1,500 libraries across the country.

Approximately 1,000 libraries responded, and of those, 4.1 percent said authorities have requested information about patrons since the Sept. 11 attacks. Additionally, more than 20

percent said they had reported patron records or behavior to authorities.

History of library surveillance

the FBI has always desired access to America’s libraries and the records of those who use them,” said author Herbert Foerstel. His 1991 book, “Surveillance in the Stacks,” looks at the FBI’s Library Awareness Program, which went on from the mid-1970s through the early 1990s, Foerstel said.

“They attempted to get librarians to report to the FBI anytime someone with a foreign name or accent was using the library. They wanted them to report what they were reading and what they were interested in,” he said.

The goal, according to Foerstel, was to limit the amount of unclassified science information that was made available to foreigners.

“It didn’t work too well,” he said. “There was a lot of ridicule in the press. At very least it was an absurd waste of taxpayer money.”

In the wake of that program, 48 states, including Minnesota, passed laws making it illegal to release private records without a court order.

The Patriot act undermines those laws, Foerstel said, and essentially puts into statute what the FBI did covertly for years.

“The claim is that the provision was simply a response to 9/11 or terrorism, but the FBI has always sought this,” he said.

University implications

celeste said if the University library system was served with a Foreign Intelligence Surveillance Act request or other court order, they would undoubtedly comply.

“The way we try to protect people’s privacy is by just not having that information around as much as possible,” he said. “We don’t want to know any more than we have to know because we don’t want to be in a position to have to report on people. That’s not why we’re here. So we keep a minimum amount of information that we need to know to get our business done.”

The Patriot act has not heralded significant changes in the way University libraries operate, Celeste said. The focus has been on making sure workers and patrons understand existing library practices.

The library system will be issuing a reminder to staff members in the next month or so on how to respond to requests for private information.

It is also working with the University’s General Counsel to update its privacy policy for the first time in seven years. Once finished, the new policy will be similar to the existing one, only it will reflect changes caused by both the Patriot act and technological advances since 1995, Celeste said.

“We want to make clear in policy what we are doing,” he said. “We keep no personal information, and we try to keep minimal individual identifiable information of any kind. Partly because it takes up a lot of room, and we don’t have that kind of space. We don’t want to keep any information that we don’t need.”

Dan Haugen covers University research and welcomes comments at [email protected]