That’s one of several concerns librarians have with a provision in the USA Patriot Act, passed by Congress last year in response to the Sept. 11, 2001, attacks. It gives the FBI authority to search library and bookstore circulation records and, where applicable, Internet user records, in an investigation of international terrorism or for other intelligence probes.
Unlike most search warrants, the FBI doesn’t have to show evidence of wrongdoing or that the target of its investigation is involved in terrorism. Instead, the agent must only claim he believes the records he wants may be related to an ongoing investigation.
The streamlined process and lower threshold of suspected guilt were passed to allow the bureau to respond more quickly to terrorist threats.
“It’s a First Amendment issue and privacy issue versus being a good citizen and wanting to help. It’s really tough to walk that fine line,” said Diane Chrisman, director of the Buffalo & Erie County Public Library system.
One year after passage of the act, the Big Brother concerns of civil libertarians appear to be hypothetical. Or are they? It’s hard to say for sure, since everything is shrouded in secrecy.
Under the USA Patriot Act, librarians and booksellers served with a court order are prohibited from disclosing, under threat of prosecution, whether an FBI warrant was served or records were released. Then again, they probably wouldn’t know anyway, because, according to Paul Moskal, a spokesman for the FBI’s Buffalo field office, electronic surveillance is typically done off site, without anyone else’s knowledge.
“We definitely have not done it at bookstores. I’m not sure if we have or haven’t at libraries, but that’s the kind of information we wouldn’t normally share,” said Moskal. “I can tell you it hasn’t been something widely used, if at all.”
In a Catch-22, some librarians said they couldn’t say if they had been approached even if they had.
“Part of the Patriot Act is that a library that is approached is not to inform either the patron . . . nor are we to report that we have been approached. So that answers that,” said Chrisman.
But several librarians, librarian associations and booksellers interviewed said they were not aware of FBI visits under the Patriot Act. These included executives at the American Library Association, the New York Library Association, the Western New York Library Association and local college librarians.
Even the Lackawanna Public Library, not far from where six suspected terrorists live, reported no visits.
That still does little to allay the First Amendment concerns of many librarians – even if they may be only hypothetical at this point.
Several organizations have sued the Justice Department under the Freedom of Information Act, in an attempt to learn about FBI visits to bookstores and libraries under the Patriot Act. The American Booksellers Foundation for Free Expression, the American Library Association’s Freedom to Read Foundation, the American Civil Liberties Union and the Electronic Privacy Information Center went to court following the Justice Department’s failure to respond to a prior Freedom of Information Act request.
The organizations are uncomfortable with what they consider to be infringements of civil liberties in the act.
So are some local booksellers.
Jonathon Welch, owner of Talking Leaves Books, wonders if his two Buffalo stores will be visited by the FBI.
“I’m kind of waiting. The Lackawanna Six don’t shop here, I guess,” he laughed. “Our fingers are crossed that they won’t come knocking on our doors.”
Brian Lampkin, proprietor of Rust Belt Books in Buffalo, said he would refuse to cooperate with the FBI if served with a court order.
“I particularly feel strongly about this,” Lampkin said. “I could never betray people who rely on me in such a manner. I’m not naive about the consequences of taking a stand, but I think the dangers of not taking a stand outweigh what may or may not happen to me.”
That view contrasts with Sal Bordonaro, director of the Lackawanna Public Library.
“With what occurred with the Arab suspects in Lackawanna, we anticipated we’d have some federal officials come here and inquire. But much to my surprise and dismay, nobody came,” Bordonaro said.
“I’ve read where police or authorities have got court orders for libraries to find out what types of materials suspected terrorists may have been reading,” he said. “I thought: “Gee, here’s a big case on suspected terrorists. I thought maybe they should have.’ “
“A chilling effect’
Guarding civil liberties and intellectual freedom have long been hallmarks of the profession. It’s embedded in the American Library Association’s Library Bill of Rights and Code of Ethics and enshrined in Statute 4509 under New York State law.
“There is a certain amount of validity to wanting to be able to prevent terrorists and criminals of any kind,” said Diane Berry of Utica, a former president of the New York Library Association’s Intellectual Freedom Committee. “But it shouldn’t be done by basically wiping your feet on the First Amendment and the Constitution.”
“If people knew that agents could come in and look at the books they were reading, it would have a chilling effect,” said Judith Geer, chairwoman of the library department at Erie Community College. “Then there’s a gag order on the librarian, who can’t tell anyone – even the person whose records were taken. It’s very disturbing. It’s really an infringement on people’s civil liberties, including librarians.”
Geer said a conversation she had with a colleague shortly after the law went into effect brought home civil liberties concerns.
“He said, “If they came in and looked at the books on the Taliban, they’d find I took a book out. Would they see my name and think I was somehow involved in something? All I wanted was just to know more about them.’ “
That sounds worrisome, said the FBI’s Moskal, but it can’t legally happen.
“To get information, we have to go to a judge and say a particular individual has committed a particular crime,” he said. “If it’s not in the order, we can’t look at it.”
Moskal said the careful process of getting a court order that allows electronic surveillance is a multilayered and time-consuming one that can take months to put together. There are fewer obtained than the public imagines, he said, about 450 in 2001.
“Television and movies have distorted real life,” Moskal said. “I think the public perception is this is something used in the regular course of business without internal or judicial supervision, and that’s not the case.”
Moskal suggested public concerns over privacy should be directed elsewhere.
“It’s not Big Brother we have to be wary of, but industry, and the capitalist society we live in that takes (personal) information and sells it on the secondary market.”
“USA Patriot Act” stands for United and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism. The 132-page act amended the Foreign Intelligence Surveillance Act, changed immigration laws, tightened controls on money laundering and expanded legal use of electronic surveillance, including “roving” wiretaps and making it easier to access private records.
The Foreign Intelligence Surveillance Act was enacted in 1978, after revelations about the FBI’s Cointelpro program, which allowed extensive surveillance of anti-war and civil rights activists, including Martin Luther King Jr., in the 1960s and 1970s.
There was also the FBI’s Library Awareness Program, which began in 1973. The FBI monitored science and public libraries around the country to see what scientific topics interested people from communist countries. When the program was brought to light, the FBI, while asserting its right to conduct surveillance in libraries, backed off under public pressure.
Eventually states, with the exception of Kentucky and Hawaii, made library records confidential, according to the American Library Association.
The Patriot Act was put on a fast track and signed into law a mere six weeks after being proposed.
Because the Justice Department is mum, it’s hard to judge how effective the Patriot Act has been in combating terrorism. Locally, because the U.S. Patriot Act was passed for federal agencies, it hasn’t offered much for state and local agencies investigating computer crime, said Scott Patronik, a chief with the Erie County sheriff’s office. But he suggested it has been of some value.
“For local law enforcement involving computer crime investigations, the Patriot Act has eased the legal burden for tracing Internet connections,” Patronik said.