USA Patriot Act & Intellectual Freedom

USA Patriot Act & Intellectual Freedom Carrie Lybecker Liza Rognas Carlos Diaz The Evergreen State College February 28, 2003

Patriot History • September 11, 2001 • September 12 Ashcroft instructed staff to draft broad authorities • Civil libertarians gathered the wagons • September 13 Senate precursor bill adopted • September 19 Congressional, White House and Justice leaders exchanged proposals • Patriot enacted October 26, 2001

Immediate Opposition • ACLU, Electronic Privacy Information Center, Center for Democracy and Technology, American Association of Law Libraries, the American Library Association, Association of Research Libraries, Amnesty International, Human Rights Watch, Physicians for Human Rights, Women's International League for Peace and Freedom

USA Patriot Act • Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 • Public Law 107-56 • H.R. 3162

Patriot Summary • Circumvents 4th Amendment probable cause requirement and protections of privacy • Vastly increases surveillance and search and seizure powers • Allows extensive information sharing among agencies • Minimizes or eliminates judicial and congressional oversight and accountability • Increases government secrecy

Intellectual Freedom: A Library Value • Intellectual freedom is the right of every individual to both seek and receive information from all points of view without restriction. It provides for free access to all expressions of ideas through which any and all sides of a question, cause or movement may be explored.—American Library Association, Office for Intellectual Freedom

Intellectual Freedom: A Library Value • Intellectual freedom is the basis for our democratic system. We expect our people to be self-governors. But to do so responsibly, our citizenry must be well-informed. Libraries provide the ideas and information, in a variety of formats, to allow people to inform themselves.—American Library Association, Office for Intellectual Freedom

Privacy: A Library Value • The right to privacy is the right to open inquiry without having the subject of one’s interest examined or scrutinized by others • Privacy is essential to the exercise of free speech, free thought, and free association, and

Privacy: A Library Value • Protecting user privacy and confidentiality has long been an integral part of the mission of libraries.—Privacy: An Interpretation of the Library Bill of Rights, American Library Association

Historical Precedents: Libraries • 1939 Library Bill of Rights • 1947 HUAC accused LOC of harboring aliens • 1948 ALA opposed loyalty oaths • 1953 McCarthy attacked overseas library collections, books burned • 1953 ALA Freedom to Read

Library Awareness Program 1960s-1980s • FBI infiltrated libraries across nation and attempted to enlist librarians in the surveillance and reporting of the library activities of foreigners, including divulging their names, reading habits, materials checked out, and their questions to reference librarians.

Library Awareness Program 1960s-1980s • “The agents told librarians that they should report to the FBI anyone with a ‘foreign sounding name or foreign sounding accent.’”—Librarian Herbert Foerstel (University of Maryland, author of Surveillance in the Stacks: The FBI's Library Awareness Program)

Library Awareness Program 1960s-1980s • “Jaia Barrett of the Association of Research Libraries wondered: ‘What’s the next step? Classifying road maps because they show where bridges are for terrorists to blow up?’”—Natalie Robbins, “The FBI’s Invasion of Libraries,” The Nation April 09, 1988

History 1970s • Treasury visited libraries demanding patron records • ALA published “Policy on Confidentiality of Library Records” and “Policy on Government Intimidation”

History 1970s • ALA denounced government use of informers, electronic surveillance, grand juries, indictments, and spying in libraries, asserting “no librarian would lend himself to a role as informant, whether of voluntarily revealing circulation records or identifying patrons and their reading habits”

Intellectual Freedom: A Basic Human Right • Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.—Article 19, Universal Declaration of Human Rights

Intellectual Freedom: A Civil Right • First Amendment: religion, speech, press, petition, assembly • Fourth Amendment: privacy, probable cause • Fifth Amendment: due process of law

Fourth Amendment • The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized

Probable Cause • A reasonable ground to suspect that a person has committed or is committing a crime or that a place contains specific items connected with a crime; the facts must be such as would warrant a belief by a reasonable man • Major distinction between criminal and intelligence investigations

Criminal vs. Intelligence Investigations • Criminal investigations must adhere to constitutional requirements regarding privacy, probable cause, and due process • Intelligence gathering relied on lesser standards, i.e. did not require probable cause, as information sought was for intelligence purposes only, not for use in criminal investigations

Criminal & Intelligence Investigations • Patriot blurs or eliminates the distinction between the two, allows gathering of evidence for criminal investigations through the secretive intelligence process which does not require probable cause as it was intended to gather data about foreign agents

History: 1950s-1970s • FBI maintained campaign of surveillance, disinformation, and disruption targeting Dr. Martin Luther King, Jr., Amnesty International, ACLU, antiwar and women’s rights groups; and at the University of California, the Free Speech Movement, students, professors, and administrators at UC Berkeley.

History: 1950s-1970s • CIA, by law restricted to intelligence activities outside US and excluding US persons, illegally spied on 7,000 Americans, sharing information with FBI • FBI initiated files on over 1 million Americans, without a single resulting conviction

History: 1970s • Senate Church Committee, 1975-1976, documented FBI and CIA abuses in 13 published volumes • Enacted FISA, the Foreign Intelligence Surveillance Act of 1978 to safeguard constitutional rights

FISA Purpose • Define FBI domestic surveillance activities relative to collection of foreign intelligence information • Provide judicial and congressional oversight • Prevent political spying and infringement on constitutional rights

FISA Prior to Patriot • Seven member secret court appointed by Supreme Court to approve applications for intelligence-gathering • Operates in secret, proceedings are secret, surveillance is secret, results are secret • FBI was required to attest (without probable cause) that the “primary purpose” of the investigation was collection of foreign intelligence information

FISA Prior to Patriot • Court’s role was largely to verify that required documents had been submitted and were in order • In 20+ year history, court denied one out of more than 10,000 requests

FISA Prior to Patriot • FBI required to identify location, devices, information sought, means of acquisition, duration • FBI prohibited from sharing acquired information with other law enforcement agencies unless approved by Attorney General (the “wall”) • Surveilled person not notified

FISA After Patriot • Patriot vastly broadens who may be surveilled, in what manner, and what information may be collected • Allows or mandates information sharing among agencies • Decreases congressional and judicial oversight

Patriot & Libraries • Section 203 Information Sharing • Section 206 Roving Wiretaps • Section 213 Sneak & Peek • Section 214 Pen/Trap-FISA • Section 215 Records • Section 216 Pen/Trap-Criminal • Section 218 Foreign Intelligence Info

Section 214: Pen/Trap (FISA) • Section 214 pertains to electronic surveillance, Pen/Trap acquisition of electronic information in intelligence investigations

Section 214: Pen/Trap • A pen register is a device that captures phone numbers dialed, Internet addressing information such as email addresses, URLs accessed, search strings initiated • A trap and trace device identifies the origin of incoming phone calls or email (electronic signaling)

Section 214: Pen/Trap (FISA) • Previously, government required to certify that it had reason to believe that the surveillance was being conducted on a line or device used by someone or a foreign power or agent involved with international terrorism or intelligence activities that violate US criminal laws

Section 214: Pen/Trap (FISA) • Now, need only assert that the information likely to be obtained is either foreign intelligence information about a non US person, or relevant to an ongoing investigation to collect foreign intelligence information or to “protect against international terrorism or clandestine intelligence activities,”

Section 214: Pen/Trap (FISA) • “provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution”

Section 203a: Foreign Intelligence Information • Information concerning a US person, that relates to the ability of the United States to protect against attack, grave hostile acts, sabotage, international terrorism, or clandestine intelligence activities by a foreign power or its agent; or

Section 203a: Foreign Intelligence Information • information, whether or not concerning a United States person, with respect to a foreign power or territory that relates to the national defense or the security of the United States, or the conduct of the foreign affairs of the United States."

Foreign Power: • “Foreign power” includes: • Foreign governments • Entity controlled by foreign government • A foreign-based political organization, not substantially composed of United States persons (50USC1801) • Examples: Amnesty International, International Red Cross, CISPES

Section 214: Pen/Trap (FISA) • International terrorism includes activities that “appear to be intended …to intimidate or coerce a civilian population” or “to influence the policy of a government by intimidation or coercion”

Section 203 Information Sharing • Any investigative or law enforcement officer, or attorney for the Government who has obtained knowledge of the contents of any wire, oral, or electronic communication, or evidence derived therefrom, may disclose such contents to any other Federal law enforcement, intelligence, protective, immigration, national defense, or national security official to the extent that such contents include foreign intelligence or counterintelligence information

Section 214: Pen/Trap (FISA) • The person/entity surveilled need not be suspected of terrorism or any crime • The specific person or communications device or network need not be specified • The order includes a gag clause: the person served may not disclose its existence

Section 218: Foreign Intelligence • Previously required to assert that “the purpose” of the surveillance is to obtain foreign intelligence information • Revised to: “a significant purpose” of the surveillance is to obtain foreign intelligence information

FISC Opinion • In August 2002, FISC took the unprecedented step of releasing, for the first time in its history, an opinion regarding the conduct of the Justice Department

FISC Opinion • Attorney General asserted that FISA may “be used primarily for a law enforcement purpose,” and • Proposed rules that would allow criminal prosecutors to direct and control intelligence investigations, that is, to use the secret FISA process to collect evidence for criminal cases

FISC Opinion • “This may be because the government is unable to meet the substantive requirements” of law applicable to criminal investigation, and

FISC Opinion • “Means that criminal prosecutors will tell the FBI when to use FISA (perhaps when they lack probable cause), what techniques to use, what information to look for, what information to keep as evidence and when use of FISA can cease because there is enough evidence to arrest and prosecute”

FISC Opinion • Court revealed its 2000 discovery that FBI had lied in 75 FISA surveillance applications and was illegally mixing intelligence and criminal investigations • In March 2001, government reported similar misstatements in another series of FISA applications

FISC Opinion • The Court found that most of the FBI’s illegal activities violating court orders involved information sharing and unauthorized disseminations to criminal investigators and prosecutors. How misrepresentations on surveillance applications occurred remained unexplained to the Court, almost two years after they were first discovered.

FISC Opinion • The court ruled against Ashcroft and ordered the DOJ to retain separation between criminal and intelligence investigations • The DOJ appealed to the FISA Court of Review (FISCR)

FISCR Opinion • The FISCR convened for the first time and issued an opinion reversing FISC decision, citing Patriot’s Sec. 218 language change from “the purpose” to “a significant purpose,” and also citing the explicit support for that language by several Senators during Patriot deliberations [Democrats Leahy, Edwards, and Feinstein]

USA Patriot Act & Intellectual Freedom