The USA PATRIOT Act in the Library
Contents
American Library Association Resources
Introduction
The USA PATRIOT (the acronym for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism) Act became law on October 26, 2001. The legislation was drafted at the insistence of Attorney General John Ashcroft, who asked Congress for additional powers that he claimed were needed to fight terrorism in the wake of the terrorist attacks of September 11, 2001. Very few amendments were made to Ashcroft’s initial proposal, and the bill became law without any hearings or markup by a Congressional committee. According to the American Library Association (ALA) Office of Intellectual Freedom, the act "amended over 15 federal statutes, including the laws governing criminal procedure, computer fraud and abuse, foreign intelligence, wiretapping, immigration, and the laws governing the privacy of student records." The act greatly expanded the power of the FBI and other law enforcement agencies to obtain business, medical, educational, and library records and expanded the use of "trap and trace" devices on internet and electronic communications.
The portion of the act of greatest concern to librarians is Section 215 (codified at 50 U.S.C. §1862 ), which amends sections of the Foreign Intelligence Security Act (FISA) to make it easier for a federal agent to obtain a search warrant for "any tangible things (including books, records, papers, documents, and other items)." Under the revised provisions a federal agent does not necessarily need to demonstrate probable cause to obtain a warrant. She or he merely needs to assert that records may be related to an ongoing investigation related to terrorism or intelligence activities, a much lower legal threshold. Particularly troubling is Section 215's so-called gag order that prohibits librarians from informing patrons that the FBI has examined their records or computer activity: "No person shall disclose to any other person (other than those persons necessary to produce the tangible things under this section) that the Federal Bureau of Investigation has sought or obtained tangible things under this section."
This Subject Guide has been prepared to present one librarian's perspective on issues related to the Patriot Act and patron privacy and does not necessarily represent the official policy of The College of New Jersey Library at the College of New Jersey. This guide is by no means comprehensive and is intended merely to provide an overview of the issues and available resources.
Images of "five technically legal signs for your library" are courtesy of librarian.net, used with permission.
Historical
Context
The controversies surrounding the Patriot Act must be understood within the context of a long history of contentious relationships between librarians and the FBI. On September 18, 1987 the New York Times ran a front-page article entitled "Libraries Are Asked by FBI to Report on Foreign Agents." This was the first public discussion of the FBI's "Library Awareness Program," which was intended to monitor the possible use of sensitive (but not classified) library information by Soviet spies. Citing the 1948 Library Bill of Rights, ALA's Intellectual Freedom Committee and rank-and-file librarians responded vigorously to these attempted intrusions on patron privacy. The FBI retaliated by impugning the patriotism of non-cooperative librarians, and eventually investigated nearly 250 librarians who declined to participate in the Library Awareness Program. Following contentious hearings before the House Committee on the Judiciary on June 20 and July 13, 1988 the program was quietly disbanded. For more detailed discussion of the Library Awareness Program, see the two books by Herbert N. Foerstel cited below.
It should be noted that New Jersey's strong protection of library patron record confidentiality (which requires a court-issued order or subpoena before records can be divulged to law enforcement) was passed in 1985, well before news of the Library Awareness Program broke. Although the Patriot Act lowers the legal threshold for obtaining a federal FISA warrant, it does not directly contradict state library confidentiality laws, nor does it alter library record keeping and retention policies.
USA PATRIOT Act Legislation
The USA PATRIOT Act (the Patriot Act) P.L. 107–56. 115 Stat. 272 (2001), enacted October 26, 2001 is available (all 132 pages!) in PDF Format. Section 215 can be found on pages 16-17 of the PDF file. The legislative history of the act can be traced through THOMAS -- U.S. Congress on the Internet.
New Jersey Library Laws
The law protecting the confidentiality of New Jersey library patron records was passed May 31, 1985 (Laws of New Jersey 1985, Chapter 172, codified at New Jersey Statutes Annotated § 18A:73-43.1.-2).
§ 18A:73-43.1. "Library," "library
record" defined
For the purposes of this act:
a. "Library" means a library maintained by any State or local governmental agency, school, college, or industrial, commercial or other special group, association or agency, whether public or private.
b. "Library record" means any document or record, however maintained, the primary purpose of which is to provide for control of the circulation or other public use of library materials.
§ 18A:73-43.2. Confidentiality; exceptions
Library records which contain the names or other personally identifying details regarding the users of libraries are confidential and shall not be disclosed except in the following circumstances:
a. The records are necessary for the proper operation of the library;
b. Disclosure is requested by the user; or
c. Disclosure is required pursuant to a subpoena issued by a court or court order.
See also: New Jersey Library Laws prepared by the New Jersey State Library, Library Development Bureau. The confidentiality provision is found in Title 18A "Education."
The New Jersey Library Association provides guidelines to assist libraries with requests for confidential library records. In the Q&A section the response to "What is the difference a between a subpoena and a search warrant?" is particularly informative.
TCNJ
Resources
Refuge of a Scoundrel: The Patriot Act in Libraries, by Herbert N. Foerstel (2004, Libraries Unlimited) is the primary source for this web page. A copy is currently on order for the TCNJ library.
The VHS recording Safeguarding our patrons' privacy: what every librarian needs to know about the USA PATRIOT Act & related anti-terrorism measures presents a 2002 teleconference sponsored by American Association of Law Libraries, American Library Association, Association of Research Libraries, Medical Library Association and Special Libraries Association. This video and the accompanying 23-page guide are available in the TCNJ media room V5241.
James G. Neal (Vice President for Information Services and University Librarian at Columbia University), one of the participants in the Safeguarding our Patrons' Privacy teleconference, has published a short article "Reaction to terror: Gauging the aftemath and the impact of USA PATRIOT Legislation," College & Research Libraries News 64 no2 78-9 Fall 2003 (available through OmniFile Full Text Mega).
No Greater Threat: America After September 11 and the Rise of a National Security State, by C. William Michaels is currently available as an electronic Netlibrary book. A print copy (2002 Algora Pub.) is currently on order.
David Cole (professor of law at Georgetown University) has written extensively on terrorism and civil liberties. See his two recent books, Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism (New Press 2003, on order) and Terrorism and the Constitution: Sacrificing Civil Liberties in the Name of National Security (coauthored with James X. Dempsey, New Press 2002, KF 4850.D46 2002b). See also "The New McCarthyism: Repeating History in the War on Terrorism," Harvard Civil Rights-Civil Liberties Law Review, Vol. 38, 2003 (available through OmniFile Full Text Mega).
The Greenhaven Press "Opposing Viewpoints" series has numerous
volumes that are suitable for introductory courses. The Civil
Liberties volume (FK 4770.C58 2004) includes short opposing viewpoint
articles on the Patriot Act by David Cole and John Ashcroft.
American
Library Association Resources
The American Library Association (ALA), primarily through the Office of Intellectual Freedom, offers numerous resources regarding the USA Patriot Act and patron record confidentiality. The Library Bill of Rights, adopted June 18, 1948, establishes principles of equal access and opposition to all forms of censorship. The ALA Code of Ethics reinforces our commitment to "each library user’s right to privacy and confidentiality."
An overview of ALA concerns is provided in USA Patriot Act in the Library, while USA Patriot Act Search Warrant provides specific guidance to libraries. On January 29, 2003 the ALA Council passed a Resolution on PATRIOT Act expressing concern that "the USA PATRIOT Act and other recently enacted laws, regulations, and guidelines increase the likelihood that the activities of library users, including their use of computers to browse the Web or access e-mail, may be under government surveillance without their knowledge or consent." The FBI in Your Library site provides numerous links and current news, including proposed legislation that could affect confidentiality of patron records. Finally, the Social Responsibilities Round Table (SRRT) "works to make ALA more democratic and to establish progressive priorities not only for the Association, but also for the entire profession."
Other
Resources
Surveillance in the Stacks: The FBI's Library Awareness Program, by Herbert N. Foerstel (1991, Greenwood Press) is unfortunately out of print but is available at most major academic libraries. This book is summarized in Chapter 1 of Foerstel's Refuge of a Scoundrel.
The nonpartisan Congressional Research Service has prepared Libraries and the USA Patriot Act a short research report that briefs Congress about the concerns of librarians.
The American Civil Liberties Union (ACLU) provides a Section 215 FAQ that raises specific constitutional concerns related to patron library records.
The Free Expression Policy Project provides a recent update about the use of Patriot Act against booksellers and libraries.
The Association of Research Libraries (ARL) provides an extensive resource guide on Anti-Terror Legislation.
In Librarians as FBI Extension Agents, anthropologist David H. Price, author of the forthcoming book Threatening Anthropology: McCarthyism and the FBI's Surveillance of Activist Anthropologists (Duke University Press), reminds librarians of the ALA code of ethics and advocates civil disobedience, if necessary, to protect patron records from FBI intrusions.
The progressive online newsletter Library Juice includes an account of a Temple University librarian's encounters with the FBI.
The Progressive Librarians Guild provides several venues for contact between socially-engaged librarians, including the print journal Progressive Librarian.
Contact:
Site prepared and maintained by Terrence W. Epperson, Ph.D., Social Sciences Librarian, the College of New Jersey. Feel free to e-mail me or visit my home page.
Comments and suggestions are welcome.
