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Information for Social Change

Information for Social Change

"an activist organisation that examines issues of censorship, freedom and ethics amongst library and information workers..."

ISC 16. The USA PATRIOT Act and American Libraries

by Robin Rice

Ambrose Bierce, in his entry under Patriotism in his Devil's Dictionary (1881-1906), wrote: "In Dr. Johnson's famous dictionary patriotism is defined as the last resort of a scoundrel. With all due respect to an enlightened but inferior lexicographer I beg to submit that it is the first."

In the immediate aftermath of the September 11th terrorist attacks, the USA PATRIOT Act of 2001 was rushed through Congress and signed into Law by President Bush by the end of October. Although it usually appears in lower case, the name is an acronym: Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism . The only Senator to vote against the bill was Russ Feingold, a Democrat from Wisconsin-the same state which produced Senator Joe McCarthy, the originator of the Cold War era witch hunts, whose style of persecution is now infamously known as McCarthyism.

The events of September 11th have put patriotism back in fashion in the US, as the midterm elections last month--which brought in Republican majorities in both houses of Congress--showed. The majority of Americans seems to crave security in the face of potential terrorist threats, and are willing to give up some of their freedoms to attain it. But American civil libertarians were quick to point out the dangers posed by giving government agencies broad new powers from the start. The same day that the Bush administration submitted the PATRIOT bill to Congress, 24 September, the American Civil Liberties Union (ACLU) and other groups released a public statement, In Defense of Freedom at a Time of Crisis. It seems to have fallen on deaf ears in Washington, D.C.

The Patriot Act has many disturbing anti-democratic features, under the auspices of fighting the war on terror. However, the Bush administration was trying to get Congress to pass some key features even before the September 11th attacks, with the intent of modernising wiretap and surveillance laws for electronic communication, and to give law enforcement greater authority to conduct searches of property for criminal investigations. It allows the Attorney General (i.e. John Ashcroft) to detain non-citizens at will (which of course happened to up to 2,000 immigrants after 11 September, many of whom are still in custody with no charges against them). It also permits the barring or deportation of immigrants based on their speech or affiliation with certain groups, even groups that have no connection to terrorist activity. It also expands the government's powers to conduct electronic surveillance, and to obtain any business, medical, or student records of individuals. However, it is the Act's affect on libraries which will be explored here.

When I attended the School of Library and Information Studies at the University of Wisconsin in the early 1990s, the American Library Association's Intellectual Freedom Manual was required reading. I have always associated the field of librarianship with the defense of the 1st Amendment of the Bill of Rights of the U.S. Constitution, which protects individual's freedom of speech and citizens' right to assembly, and the freedom of the press. Library policies therefore tend toward this Liberal tradition, in terms of allowing public groups to book meeting rooms in library buildings, speaking out against censorship and book banning, and protecting patron's confidentiality in terms of their reading behaviour. Intellectual freedom, expressed not only as the freedom of expression and opinion, but particularly as the freedom to read and be informed, is a creed built into the very profession of librarianship, taught alongside the rules of cataloguing and the art of conducting a reference interview.

Therefore, when the Patriot Act was passed, and its implications for libraries became clear, librarians began informing each other about the law, its requirements, and how it could be resisted. The mid-year American Library Association (ALA) conference in February, 2002 featured the Patriot Act, and the ALA's website is filled with advice for librarians on coping with FBI requests, the latest news, and related links, particularly by its influential Washington Office, and its Office for Intellectual Freedom. The ALA Council, a body elected by ALA's large membership, passed an official statement on 23 January, 2002, Resolution Reaffirming the Principles of Intellectual Freedom in the Aftermath of Terrorist Attacks , which includes the following unequivocal text, quoted from its own Policy 53.1.12, "Universal Right to Free Expression":

'The American Library Association believes that freedom of expression is an inalienable human right, necessary to self-government, vital to the resistance of oppression, and crucial to the cause of justice, and further, that the principles of freedom of expression should be applied by libraries and librarians throughout the world.'

So what exactly is the effect of the Patriot Act on American libraries? In a nutshell, the law lowers the barriers to the FBI's ability to get permission in the form of subpoenas, search warrants, and wiretap orders, to legally obtain individual library patron's records of any kind, i.e. to spy on library patrons whom it considers dangerous.

Under the new law, the FBI can obtain library search warrants from secret courts (known as FISA courts: created by the Foreign Intelligence Surveillance Act) which deal with cases of international terrorism or clandestine intelligence investigations. Unlike regular criminal search warrants, no evidence of wrongdoing is required for the warrant to be granted. Rather, the FBI need only show it has reason to suspect that a person is involved with a terrorist or a terrorist plot, or may have information relevant to a foreign intelligence investigation. Information gathered may be shared between domestic and foreign intelligence agencies. One 'limitation' of the law is that, when US citizens are involved, the investigation must not be based solely (but can be based in part) on First Amendment-protected activities.

Additionally, the law includes a 'gag order' so that libraries or bookstores that are served with a search warrant are not allowed to tell the patron or anyone else that their user records were obtained by the FBI, or to disclose the name of the 'target' to anyone. In this way the entire investigation is kept secret. They may consult with their legal counsel before complying, and request that the legal counsel be present during the actual search and execution of the warrant, but the library and its staff (or bookseller) must comply with the order. If the FBI gets permission to track patrons' use of the Internet in libraries, it is allowed to install special hardware or software on the library computers, or to seize computer or storage hardware.

Reasonable advice is given on the ALA website for how to cope with law enforcement visits. This includes training all staff to ask for identification if they are approached by an agent or officer, and to immediately refer them to a designated staffperson such as the library director, who will deal with all law enforcement requests. Counsel can be requested to be present, but with a search warrant the search may begin immediately. Staff should not answer questions out of the scope of the warrant, and should be present to ensure that records other than those explicitly allowed in the warrant are not read, taken or copied. And, perhaps the most subversive advice offered, is to simply not create or retain records that are not absolutely necessary for the efficient running of the library.

One of the reasons the library community was so swift to react to the passage of the PATRIOT Act is that they have been embattled with the FBI before. As part of the FBI's so-called Libraries Awareness Program during the 1980's, agents sought information on library patrons it deemed suspicious and encountered the wrath of librarians who publicised the program and raised awareness of the FBI's tactics to the public. This led to changes to most state's laws which explicitly granted protection of confidentiality of library patron's records.

So what are librarians so worked up about, anyhow? Are they fond of criminals and terrorists, or are they unpatriotic? There are at least three major reasons why librarians oppose the intelligence agencies' powers to snoop around their users' records. One of which, is that if they themselves suspect users of criminal activity, they can and do report it to law enforcement agencies voluntarily. For example, a public librarian in Florida recognised the names of three patrons on the list of suspected hijackers of September 11th and notified the FBI, which then obtained computer records from the library.

A second reason, in part due to past experience with the FBI's Library Awareness Program, is the concern with the chilling effect on information-seeking when users are concerned that their privacy will not be protected. Although this is hard to measure, it is an entirely valid concern. The new powers granted to intelligence agencies and the secrecy surrounding their investigations may arguably undermine the public trust in libraries and librarians as gateways to information. Foreign nationals who are not native English speakers may have even more reason to be afraid, despite all that libraries have to offer them.

The third major concern of librarians has to do not with privacy rights, but with the right of access to government information, which is created with public funds and by definition is publicly owned. After "9-11", some information on government websites was removed due to concern over availability of information that might be useful to terrorists. For example, the International Nuclear Safety Center removed interactive maps from its site; the Federal Energy Regulatory Commission removed specifications for energy facilities from its website; and the Environmental Protection Agency removed risk management plans regarding the dangers of chemical accidents from its website. In addition, the Government Printing Office ordered Federal Depository Libraries to destroy a CD-ROM containing US Geological Survey information about water supply.

This information obviously has value to (non-terrorist) citizens such as those who live near energy facilities, scientists, and environmentalists, among others. How is the government balancing its duty to protect the public from terrorism with its duty to make information it collects public? The ALA Washington Office has lots of relevant questions about this. For example,

  • Is bibliographic information about the removed information still available?
  • Is anyone keeping track of what has been removed?
  • Is the information being appropriately preserved-not just stored but accessible and retrievable?
  • These decisions are being made-by whom? How? Under what criteria? They want the government's criteria to be discussed openly and for librarians to document the losses of how users are affected when access to information is denied.

Librarians are not the only group resisting the Patriot Act's adverse effects on freedom and democracy for American citizens. According to the ACLU, more than 30 towns and cities across the US have passed or are considering resolutions protesting repressive federal action against civil liberties since the Patriot Act came into law. For example, in Takoma Park, Maryland:

In addition to language instructing local law enforcement officials to "refrain from participating in enforcement of federal immigration laws," the resolution adopted by Takoma Park [in October, 2002] also calls for the repeal of all federal and state legislation that violates fundamental rights and liberties. The resolution also seeks details on the extent of electronic surveillance and the infiltration of political and religious activities in Takoma Park.

More good news is that in November, 2002, a federal judge has ordered the Department of Justice to process a request for information filed under the Freedom of Information Act by the Electronic Privacy Information Center (EPIC), the ACLU, and library and bookseller organisations, which would disclose information about the implementation of the Patriot Act so far.

Nevertheless, the Patriot Act appears to be only the tip of the iceberg, with regard to assaults on American's privacy by the federal government since 9-11. In addition to the birth of yet another intelligence agency, the Office for Homeland Security, the U.S. military is now home to the new Information Awareness Office (IAO), which is charged with developing a "large-scale counter-terrorism database," called "Total Information Awareness" (TIA). Located within DARPA (Defense Advanced Research Projects Agency), which developed the Internet, the IAO is headed up by Reagan-era counter-terrorism 'expert', retired Admiral John Poindexter, known best for masterminding the Iran-Contra arms deal-and lying to Congress about it. Not limited to terrorism suspects, the scope is everyone living in the United States. The database design is to gather bits of information from a variety of sources, including transactional data (financial, medical, administrative, etc.), as well as biometric data, such as fingerprints, so that through data mining techniques, the unique attributes of terrorists may be singled out by Big Brother. The size of the database will be measured in petabytes (a thousand terrabytes, or one quadrillion bytes). Time will tell if civil libertarians can awaken the public's anger enough to stop such intrusive schemes from coming to fruition.


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