Tucson, Arizona Saturday, 24 August 2002
By Bill Marvel
THE DALLAS MORNING NEWS
http://www.azstarnet.com/star/today/20824NATTACKS-BOOKSNOOPS.html
DALLAS - To many, it's the bedrock for all other American liberties: our right to read what we please without the government peering over our shoulders.
Many also believe that Congress put this right in jeopardy six weeks after Sept. 11 when it passed the USA PATRIOT Act with almost no discussion or debate.
Under a little-noted provision, Section 215, the USA PATRIOT Act - officially, Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism - gives FBI agents authority to investigate the reading habits of citizens suspected of terrorism.
Armed with a subpoena from a special "spy court," agents can examine bookstore and library records without having to show any probable cause that a crime has been committed, or even that the records are evidence of a crime. That includes library records of Internet searches by patrons. Agents need only convince a judge that their investigation is related to national security or terrorism.
More troubling yet, say the act's critics, those investigations are cloaked in deepest secrecy. The person being investigated is never informed of the scrutiny. In fact, it's a crime for a librarian or bookstore clerk to reveal the existence of such an investigation, even to a co-worker or boss.
At the University of Arizona, a library official says she is "vaguely aware" of the act's library records provision but is not aware of any FBI requests for records on campus.
"We will not reveal a person's private records," says Barbara Allen, special assistant to the Dean of Libraries.
If FBI agents came to any of the campus libraries seeking records, Allen says officials would refer them to university police or attorneys.
"There are other ways to be cooperative and support security without violating individual rights," Allen says.
Tucson-Pima Public Library officials could not be reached for comment.
Despite the secrecy, there are indications the FBI has been making frequent use of Section 215. In a University of Illinois survey of 1,503 public libraries, 85 reported that the FBI or local law enforcement authorities have requested information about patrons since Sept. 11, though almost all states have laws making library records confidential.
It's impossible to find out just how the law is being used or the extent of its impact on bookstores and their customers, says Chris Finan, president of the American Booksellers Foundation for Free Expression.
"None of us can monitor this situation," he says. "But one of our concerns about the law is that it isn't clear agents couldn't go into a bookstore and say, 'Give me a list of everybody who's bought this certain title.' "
Such searches are not unheard of, he says. Earlier this year, Cleveland police asked Amazon.com for a list of everyone in northern Ohio who had purchased a certain audio CD said to hold sexually explicit material.
"There's no public oversight at all," complains Theresa Chmara, a Washington, D.C., attorney specializing in First Amendment and Constitutional law. "It's hard to keep track if there's an abuse of the process going on."
Libraries may have a slight advantage over bookstores, she says.
Because of state laws against disclosing library records, librarians served with a subpoena can at least consult an attorney before surrendering those records to FBI agents.
But ultimately, all an attorney can do is advise them to produce the records, since the USA PATRIOT Act supersedes state laws.
Although librarians traditionally are reluctant to reveal what books patrons have borrowed or what Web sites they've visited, in the days immediately after Sept. 11 several librarians volunteered information to federal authorities.
"Fortunately in this country, this sort of thing hasn't been our tradition," says Deborah Caldwell-Stone, deputy director of the Office for Intellectual Freedom of the American Library Association. "But you can look at what happened in Eastern Europe and Russia where, if you read the wrong thing, the secret police would be knocking at your door.
"The library is a democratic institution, the one place where people can come and read to educate and entertain themselves."
The Department of Justice says that Section 215 of the USA PATRIOT Act is being misunderstood.
"One misunderstanding," says Viet Dinh, the department's assistant attorney general for legal policy, "is that it is specifically targeted at bookstores or libraries. That's not true. This provision is generally applicable to all businesses. And it excepts First Amendment rights. There has to be some criminal activity."
In other words, he explains, the act cannot be used against a U.S. citizen just because of what that citizen has been reading or what Web sites he or she has been visiting. There must be some other evidence linking the person to the crime of terrorism.
Section 215, he says, simply extends to investigations of terrorism powers that were already available to the federal government in ordinary criminal investigations.
"The PATRIOT Act is a specialized tool to protect national security," Dinh says. The warrant has to be pinpointed, and the search has to be limited to the scope of the investigation. "It does not authorize fishing expeditions."
Nevertheless, it appears that Congress has lately become concerned about the law's implications.
In late June, the House Judiciary Committee sent a 12-page letter to Attorney General John Ashcroft asking for details of how the USA PATRIOT Act has been used.
Among other things, the committee wanted to know how many subpoenas have been issued to libraries, bookstores and newspapers under Section 215, and what safeguards have been set in place to prevent abuse of constitutional rights.
The committee's letter instructed the Justice Department to respond by July 9, a deadline the department missed by two weeks. And even then the answers were not all the committee had hoped for.
"We got a response providing answers to some of our questions," says Jeff Lungren, a spokesman for the Judiciary Committee and for committee chairman Rep. F. James Sensenbrenner Jr., R-Wis. "We're working on getting answers to other questions."
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