“Libraries and the Patriot Act”

1. “Libraries and the Patriot Act” John V. Nichols, Director Oshkosh Public Library and the Winnefox Library System

2. “They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.” Benjamin Franklin

3. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” [45 words] US Constitution: 1st Amendment

4. Mistrust of strong, central governments Debate over whether Bill of Rights was needed because… Unlike governments based upon divine right of kings, our was to be based upon “consent of the governed.” Powers derived from the people. Government has no authority not specifically granted by people. Historical Context

5. Bill of Rights provided protection for individual liberties/freedom from “tyranny of majority.” Affirmative responsibility for government officials to “uphold” Constitution (basis of our freedom). Librarians take that affirmative responsibility very seriously. Support for amendment is tested in controversy. Historical/Social Context

6. Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963) (“freedom of the press embraces the circulation of books as well as their publication”). Court Cases

7. Griswold v. Connecticut, 381 U.S. 479 (1965) (“not only the right to utter or to print, but the right to distribute, the right to receive, the right to read … and freedom of inquiry”). Court Cases

8. It is the responsibility of publishers and librarians, as guardians of the people’s freedom to read, to contest encroachments upon that freedom… Library Freedom to Read Statement/Policy

9. 43.30Public library records. (1)Records of any library which is in whole or in part supported by public funds, including the records of a public library system, indicating the identity of any individual who borrows or uses the library's documents or other materials, resources or services may not be disclosed except by court order or to persons acting within the scope of their duties in the administration of the library or library system, to persons authorized by the individual to inspect such records or to libraries as authorized under subs. (2) and (3). Wisconsin State Law

10. “[T]he effect of forced disclosure of library records would be to chill citizens’ reading of unpopular or controversial books because others might learn of it.” Brown v. Johnston, 328 N.W.2d 510, 512 (Iowa 1983) (emphasis added). “Chilling Effect”

11. If people are concerned that what they read/view or listen to may become known, they will lose trust in the institution and perhaps avoid seeking the information they need. Libraries are interested in maximizing people’s access to information and tend to oppose anything that limits that access. Each encroachment of individual freedom seems to become the justification for the next. Why Do We Care?

12. Modifies the rules on records searches. Post-Patriot Act, third-party holders of your financial, library, travel, video rental, phone, medical, church, synagogue, and mosque records can be searched without your knowledge or consent, providing the government says it's trying to protect against terrorism. USA Patriot Act – Sec. 215

13. Previously the government needed at least a warrant and probable cause to access private records. Needed to show probable cause that a crime had been committed and to obtain a warrant from a neutral judge. Pre-Patriot Act – Sec. 215

14. Now the FBI needs only to certify to a FISA judge—(no need for evidence or probable cause) that the search protects against terrorism. The judge has no authority to reject this application. DOJ calls this "seeking a court order.“ For reasons of national security, the proceedings of the FISC are closed. Post-Patriot Act – Sec. 215

15. Section (d) “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.” Contacting legal counsel would be allowed. Post-Patriot Act–Gag Rule

16. “As long as the agent…can demonstrate some other justification…such as being born abroad, being married to a noncitizen, or traveling to countries with which the United States does not have strong foreign relations—this may be enough to receive a grant of surveillance from the FISC.” Sharon H. Rackow, How the USA PATRIOT Act Will Permit Governmental Infringement Upon the Privacy of Americans in the Name of “Intelligence” Investigations, 150 University of Pennsylvania Law Review 1651, 1690 (2002). Post-Patriot Act – Sec. 215

17. So…we hope that Kurdish refugees living in Oshkosh still feel free to use library computers to keep in touch with events in Iraq without fear of becoming a “person of interest.” Why Do We Care?

18. So…we hope that your daughter that returned from a Peace Corps assignment in Afghanistan doesn’t generate FBI interest due to their requesting of inter-library loan articles on middle eastern terrorism.” Why Do We Care?

19. And…we hope that your son-in-laws trips back to Pakistan and his contributions to a Pakistani relief organization don’t engender inquiries by the FBI into his e-mail practices on library computers.” Why Do We Care?

20. Because none of these actions, in and of themselves, were illegal activities. The Patriot Act permits their investigation in ways not permitted before. And just the knowledge of that may inhibit the perfectly legal use of library resources and services by citizens guilty of nothing. Why Do We Care?

21. Circulation Records – only linked to patron’s record as long as item is checked out. Separated once returned. Public Internet Use – computers, once rebooted, wipe all information on internet use to help protect network against viruses. Records only kept (by system design) as long as are needed for statistics or backup. Misconception about destruction of records in media. Records We Have

22. Abide by the law. Limit awareness of warrant. Consult with City Attorney. Cooperate with FBI. May include request to participate in surveillance. Produce records. Library Legal Responsibility

23. Response to Rep. Sensenbrenner request for information: “The number of times the Government has requested or the Court has approved requests under this section since passage of the PATRIOT Act, is classified, and will be provided in an appropriate channel.”? DOJ Responses to Challenges

24. “The number of times section 215 has been used to date is zero.” Declassification of ‘Section 215 Requests’: as reported in, Ashcroft to Declassify some Patriot Act Records, CNN.com, September 17, 2003; and No Patriot Check Out at Libraries, CBSNews.com, September, 18, 2003. DOJ Responses to Challenges

25. Assistant Attorney General Viet Dinh did throw a bone to librarians, noting that in "an informal survey of the field offices," Justice learned "that libraries have been contacted approximately 50 times, based on articulable suspicion or voluntary calls from librarians regarding suspicious activity." He noted that most such visits were in the context of ordinary criminal investigations and did not rely on the powers granted by Section 215.* DOJ Responses to Challenges

26. Supporting reasonable amendments to Patriot Act to prevent unnecessary erosion of 1st and 4th Amendment rights. Sen. Feingold (S. 1507) “Library, Bookseller, and Personal Records Privacy Act” would limit govt. access to library, bookseller, medical and other sensitive personal records under FISA. Monitor attempts to further expand Patriot Act or similar efforts. Library Associations

27. USA Patriot Act – sunsets in 2005? Patriot II or Victory Act? The government would be allowed to obtain credit card records and library records with out a warrant. would give the government new powers to issue ‘administrative subpoenas’ and to enforce what it calls ‘national security letters’ to obtain confidential library, Internet and bookstore records—without going to court at all. What’s Next?

28. What’s Next? • Total Information Awareness? • Project of the Defense Advanced Research Projects Agency (DARPA) • Adm. John Poindexter – Head

29. What’s Next? • Neoconservative New York Times columnist William Safire notes the potential of the TIA program as follows:"Every purchase you make with a credit card, every magazine subscription you buy and medical prescription you fill, every Web site you visit and e-mail you send or receive, every academic grade you receive, every bank deposit you make, every trip you book and every event you attend — all these transactions and communications will go into what the Defense Department describes as "a virtual, centralized grand database."

30. “Libraries and the Patriot Act” John V. Nichols, Director Oshkosh Public Library and the Winnefox Library System Questions?