The PATRIOT Act and Circulation Records: Privacy Lost
On Oct. 26, 2001, President Bush signed the PATRIOT Act into law. The act placed new restrictions on Americans’ civil liberties, for the sake of curtailing potential terrorism. Among other effects, the act made it easier for federal law enforcement officials to obtain library circulation records. This is troubling to many people, who believe the act represents an infringement of Americans’ First and Fourth Amendment rights. The government, on the other hand, argues that the act is necessary and effective. This paper looks at the forerunners to the PATRIOT Act, what effects the act has on library circulation records, and what has been said about the act. After all of the evidence is considered, the act’s detractors seem to make the more compelling arguments.
The PATRIOT Act did not mark the beginning of the government’s examination of who was using what information. The first “well-publicized government confrontation with the library profession” occurred in 1970, when the Bureau of Alcohol, Tobacco and Firearms sought information on people borrowing books about explosives and guerrilla warfare (Foerstel, 2004, p. xii). The American Library Association responded by calling for confidentiality policies, and refusing to cooperate except when faced with a court order issued for a good cause (Foerstel).
Then, in the 1970s and 1980s, during the Cold War, the FBI conducted the Library Awareness Program, in which it tried to influence librarians to report any “suspicious” use or users (i.e., Soviets or other Eastern-bloc nationals) (Foerstel, 2004). That program was largely a failure due to librarians’ reluctance to cooperate (Foerstel).
The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act) was passed amid the post-9/11 fear that gripped the nation. The voluminous act passed so quickly, “Clearly, the legislators could not have given the law careful consideration. It is safe to say that it was, in part, an emotional reaction to a serious crisis” (Coolidge, 2005).
Under the provisions of the PATRIOT Act, it became easier for the FBI to obtain warrants, under the Foreign Intelligence Surveillance Act, to obtain library circulation records. Previously, only certain businesses’ records could be obtained, and the target of the investigation could not be a U.S. citizen. The PATRIOT Act expanded obtainable information to “any tangible thing” from a business, such as a library or bookstore, and allowed warrants to apply to American citizens (Foerstel, 2004; Pike, 2006; Albitz, 2005). No probable cause is required for a warrant, under the new FISA (Foerstel). Gag orders are imposed upon entities that are served with such a warrant (Foerstel).
The PATRIOT Act also made it easier, in theory, for the FBI to serve entities such as libraries with national security letters (NSLs). No longer did the target need to be a “foreign power” or “agent of a foreign power,” just like the change the PATRIOT Act made to FISA (Foerstel, 2004). Also, as with FISA warrants, no probable cause was needed, and a gag order was imposed (Foerstel).
NSLs were successfully challenged in court in Doe v. Gonzales (2006). The Library Connection, a nonprofit consortium of 27 public and academic libraries in central Connecticut, refused a demand to release patron records to the FBI. The Second Circuit Court of Appeals ruled that the Library Connection did not have to disclose that information. The FBI soon voluntarily dropped the gag order, allowing Library Connection staff to speak out (American Library Association, 2006b).
Peter Chase, vice president of Library Connection, states regarding the gag order, “As a librarian, I believe it is my duty and responsibility to speak out about any infringement to the intellectual freedom of library patrons. But … my own government prevented me from fulfilling that duty” (American Civil Liberties Union, 2006b). Executive director of the consortium, George Christian, states:
I am incensed that the government uses the provisions of the
Patriot Act to justify unrestrained and secret access to the
records of libraries, Free public libraries exist in this
country to promote democracy by allowing the public to
inform itself on the issues of the day. The idea that the
government can secretly investigate what the public is
informing itself about is chilling. It cannot help but be
intimidating, and it is not something I believe the
government should be allowed to do.
(American Civil Liberties Union, 2006a)
The American Library Association, which has denounced the PATRIOT Act, resolved to commend the stand of the Library Connection and condemn the use of NSLs. The association offers advice on its Web site (http://www.ala.org) for libraries that face requests from law enforcement, including the FBI under the PATRIOT Act. The ALA advises that no information be released without a valid subpoena or search warrant, issued for a good cause, and that libraries consult with legal counsel. If the library does not have its own counsel, the ALA recommends contacting the Office of Intellectual Freedom and stating that legal advice is needed. (There is no need to state why such advice is needed, in keeping with the gag orders inherent to some law enforcement tools.)
The ALA’s Code of Ethics, Article III, reads, “We protect each library user’s right to privacy and confidentiality with respect to information sought or received, and resources consulted, borrowed, acquired or transmitted” (American Library Association, 2006a). Forty-eight states also have library confidentiality laws; however, unfortunately, the PATRIOT Act overrides these laws (Foerstel, 2004). But states and locales have fought back: “Almost 400 local governments and seven states have passed resolutions denouncing the Patriot Act” (“Turintin Risks Privacy,” n.d.).
Those who support the PATRIOT Act argue that it is necessary, and that it is working, seeing that we have not had another 9/11-style tragedy in the United States. “ ‘Bad things do happen in libraries,’ ” said U.S. attorney Joseph Van Bokkelen in a November 2006 speech, “in defense of aspects of the act that allow for investigators to check up on the books people have checked out” (“Van Bokkelen Speaks Out for Patriot Act,” 2006). During a 20-city speaking tour in 2003, then-Attorney General John Ashcroft called the ALA’s fears alarmist and hysterical, and claimed the PATRIOT Act had never even been used against a library to obtain patron records (this was, of course, before Doe v. Gonzales) (Coolidge, 2005). Ashcroft even said, “We just don’t care” about Americans’ reading habits (Coolidge).
However, those who oppose the PATRIOT Act say that it “represents a broad assault on the Bill of Rights” (Foerstel, 2004, p. x). Writes Foerstel, “I believe that the growing federal policy to restrict information and monitor those who would use it is anti-intellectual, xenophobic, and ultimately injurious to our national security” (p. xi). Former Congressman Don Edwards, who fought the Library Awareness Program, says, “the Patriot Act, which is a monstrosity anyway, turns the librarians and the other employees of the library into federal agents, spies and snitches” (Foerstel, p. 150).
Some libraries, in response to the PATRIOT Act, have changed the way they store personal information; they will not keep as much on file as they did previously (Foerstel, 2004). After all, the library cannot turn over information that it does not even have. A number of libraries are also warning their patrons, via signs, that their circulation information might not be safe (Foerstel).
Although the Library Connection won its case involving an NSL, that does not mean that the FBI will not try to use NSLs again, perhaps in modified form. There also remains the ability of the FBI to use FISA warrants to obtain circulation records. As long as the PATRIOT Act makes this possible, Americans’ right to privacy is threatened. The library, previously “a cornerstone of First Amendment rights, an institution built on the concept of free expression of ideas” (Airold, 2006), risks losing its special significance and becoming a place where freedom of thought is no longer safe.
Works Consulted
Airold, Joan. (2006, winter). “Case Study: A Grand Jury Subpoena in the Patriot Act Era.” Library Administration & Management. Accessed online Dec. 18, 2006, via http://www.library.arizona.edu.
Albitz, Becky. (2005, May). “Dude, Where Are My Civil Rights?” Journal of Academic Librarianship. Accessed online Dec. 18, 2006, via http://www.library.arizona.edu.
American Civil Liberties Union. (2006a). “Doe v. Gonzales: Fighting the FBI’s Demand for Library Records – Statement of George Christian.” Accessed online Dec. 18, 2006, from http://www.aclu.org/safefree/nationalsecurityletters/25699res2006530.html.
American Civil Liberties Union. (2006b). “Doe v. Gonzales: Fighting the FBI’s Demand for Library Records – Statement of Peter Chase.” Accessed online Dec. 18, 2006, from http://www.aclu.org/safefree/nationalsecurityletters/25698res20060530.html.
American Library Association. (2006a). “Policy on Confidentiality of Library Records.” Accessed online Dec. 18, 2006, at http://www.ala.org/Template.cfm?Section=otherpolicies&Template.cfm?Section=otherpolicies&Template=/ContentManagement/ContentDisplay.cf,&ContentID=13084.
American Library Association. (2006b). “Resolution to Commend the John Does of the Library Connection.” Accessed online Dec. 18, 2006, at http://www.ala.org/ala/oif/ifissues/issuesrelatedlinks/doesresolution.htm
American Library Association. (2006c). “USA PATRIOT Act: Doe v. Gonzales.” Accessed online Dec. 18, 2006, at http://www.ala.org/ala/oif/ifossies/usactlibrarians.htm.
American Library Association. (2006d). “The USA Patriot Act in the Library.” Accessed online Dec. 18, 2006, at http://www.ala.org/Template.cfm?Section=ifissues&Template=/ContentManagement/ContentDisplay.cfm&ContentID=76289.
American Library Association. (2006e). “USA PATRIOT Act Search Warrant.” Accessed online Dec. 18, 2006, at http://www.ala.org/Template.cfm?Section=ifissues&Templante=ContentManagement/ContentDisplay.cfm&ContentID=51866.
Coolidge, Katherine K. (2005). “ ‘Baseless Hysteria’: The Controversy Between the Department of Justice and the American Library Association over the USA PATRIOT Act.” Law Library Journal. Accessed online Dec. 18, 2006, via http://www.library.arizona.edu.
Foerstel, Herbert N. (2004). Refuge of a Scoundrel: The Patriot Act in Libraries. Westport, CT: Libraries Unlimited.
Martins, C.S., et al. (2005, May/June). “The Impact of the USA PATRIOT Act on Records Management.” Information Management Journal. Accessed online Dec. 18, 2006, via http://www.library.arizona.edu.
Ostrowsky, Ben. (2005, June). “Anonymous Library Cards Allow You to Wonder ‘Who Was That Masked Patron?’” Computers in Libraries. Accessed online Dec. 18, 2006, via http://www.library.arizona.edu.
Pike, George H. (2006, April). “The USA Patriot Act: What’s Next?” Information Today. Accessed online Dec. 18, 2006, via http://www.library.arizona.edu.
“Turintin Risks Privacy.” (n.d.). Excalibur: York University’s Newspaper. Accessed online Dec. 18, 2006, at http://www.excal.on.ca/index.php?option=com_content&task=view&id=2532&Itemid=2.
“Van Bokkelen Speaks Out for Patriot Act.” (2006, Nov. 30). Northwest Indiana Times. Accessed online Dec. 18, 2006, via http://nwtimes.com/articles/2006/11/30/news/lake_county/500cb1ed>fa2f012862572350082c156.txt