The Impact of the USA PATRIOT Act on Free Expression

Category: Americas, World Affairs Topics: Government, Patriot Act, Public Library Views: 11130

Hours after the terrorist attacks on September 11, 2001, people rushed to libraries to read about the Taliban, Islam, Afghanistan and terrorism. Americans sought background materials to foster understanding and cope with this horrific event. They turned to a place with reliable answers -- to a trustworthy public space where they are free to inquire, and where their privacy is respected.

Since 9-11, libraries remain more important than ever to ensuring the right of every individual to hold and express opinions and to seek and receive information, the essence of a thriving democracy. But just as the public is exercising its right to receive information and ideas -- a necessary aspect of free expression -- in order to understand the events of the day, government is threatening these very liberties, claiming it must do so in the name of national security.

While the public turned to libraries for answers, the Bush Administration turned to the intelligence community for techniques to secure U.S. borders and reduce the possibility of more terrorism. The result was new legislation and administrative actions that the government says will strengthen security. Most notably, Congress passed into law the "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act" (USA PATRIOT Act) just six weeks after the events of September 11. This legislation broadly expands the powers of federal law enforcement agencies to gather intelligence and investigate anyone it suspects of terrorism.

The USA PATRIOT Act contains more than 150 sections and amends over 15 federal statutes, including laws governing criminal procedure, computer fraud, foreign intelligence, wiretapping, and immigration. Particularly troubling to free speech and privacy advocates are four provisions: section 206, which permits the use of "roving wiretaps" and secret court orders to monitor electronic communications to investigate terrorists; sections 214 and 216, which extend telephone monitoring authority to include routing and addressing information for Internet traffic relevant to any criminal investigation; and, finally, section 215, which grants unprecedented authority to the Federal Bureau of Investigation (FBI) and other law enforcement agencies to obtain search warrants for business, medical, educational, library, and bookstore records merely by claiming that the desired records may be related to an ongoing terrorism investigation or intelligence activities -- a very relaxed legal standard which does not require any actual proof or even reasonable suspicion of terrorist activity.1

Equally troubling, section 215 includes a "gag order" provision prohibiting any person or institution served with a search warrant from disclosing what has taken place. In conjunction with the passage of the USA PATRIOT Act, the U.S. Justice Department issued revised FBI guidelines in May 2002 that greatly increase the bureau's surveillance and data collection authority to access such information as an individual's Web surfing habits and search terms.2

These enhanced surveillance powers license law enforcement officials to peer into Americans' most private reading, research, and communications. Several of the Act's hastily passed provisions not only violate the privacy and confidentiality rights of those using public libraries and bookstores, but sweep aside constitutional checks and balances by authorizing intelligence agencies (which are within the executive branch of government) to gather information in situations that may be completely unconnected to a potential criminal proceeding (which is part of the judicial branch of government). The constitutional requirement of search warrants, to be issued by judges, is one such check on unbridled executive power. In addition to the dangers to democracy from such unbridled executive power, it is not clear that these enhanced investigative capabilities will make us safer, for under the new provisions, far more information is going to the same intelligence agencies that were failing to manage the ocean of information they collected prior to September 11.

We do not know how the USA PATRIOT Act and related measures have been applied in libraries, bookstores, and other venues because the gag order bars individuals from making that information public. The executive branch has refused to answer inquiries from members of the House and Senate Judiciary Committees, and from civil liberties groups under the Freedom of Information Act, regarding the incidence of surveillance activities, except an admission of snooping in libraries by FBI agents.3

Officially, librarians are not allowed to comment on FBI visits to examine library users' Internet surfing and book-borrowing habits. Unofficially, though, some details have surfaced. Two nationwide surveys conducted at the University of Illinois after September 11 found that more than 200 out of 1,500 libraries surveyed had turned over information to law enforcement officials.4 A March 2003 article in the Hartford Courant revealed that librarians in Fairfield and Hartford, Connecticut, were visited by the FBI, but only one case involved a search warrant.5 And an FWWeekly article on April 17, 2003, cited a case in New Mexico where a former public defender was arrested by federal agents and interrogated for five hours after using a computer at a Santa Fe academic library, apparently as a result of a chat room statement that President Bush was out of control.6 It is unclear whether any of these incidents involved secret search warrants as authorized under section 215 of the USA PATRIOT Act.

Federal officials claim that the USA PATRIOT Act and related measures have helped quash terrorist attacks. Mark Corallo, a Justice Department spokesman, has assured the public that, "We're not going after the average American. ... If you're not a terrorist or a spy, you have nothing to worry about."7 Nevertheless, many American are uncomfortable relying on government officials for assurances that they will protect both civil liberties and national security effectively.

The USA PATRIOT Act is just one of several troubling policies that compromise the public's privacy rights. Another is the Enhanced Computer Assisted Passenger Pre-screening System (CAPPS-II), which profiles airline passengers and provides "No-Fly" watch lists to the Transportation Security Administration.8 The danger here is that all airline passengers are assigned a risk assessment "score" without recourse. As a result, innocent people could be branded security risks on the basis of flawed data and without any meaningful way to challenge the government's determination.

A third example is the Department of Defense Total Information Awareness program that seeks to scan billions of personal electronic financial, medical, communication, education, housing and travel transactions, analyze them utilizing both computer algorithms and human analysis, and then flag suspicious activity.9 Americans innocent of any wrongdoing could be targeted by this system because it will collect information (and misinformation) on everyone, much of which can be misused. Furthermore, a planned identity tracking system could follow individuals wherever they go.

And, finally, not to be overlooked, is the proposed "Domestic Security Enhancement Act of 2003," a more extreme version of the USA PATRIOT Act, which could be introduced in Congress at any time. This proposed legislation, leaked by a Justice Department official to the Center for Public Integrity, would make it easier for the government to initiate surveillance and wiretapping of U.S. citizens, repeal current court limits on local police gathering information on religious and political activity, allow the government to obtain credit and library records without a warrant, restrict release of information about health or safety hazards posed by chemical and other plants, expand the definition of terrorist actions to include civil disobedience, permit certain warrantless wiretaps and searches, loosen the standards for electronic eavesdropping of entirely domestic activity, and strip even native-born Americans of all of the rights of United States citizenship if they provide support to unpopular organizations labeled as terrorist by our government.10

Citizens and organizations around the country are standing up and passing resolutions opposing the USA PATRIOT Act and related measures,11 and are urging local officials contacted by federal investigators to refuse requests that they believe violate civil liberties -- whether Fourth Amendment rights to be free of unreasonable searches and seizures, First Amendment intellectual freedom and privacy rights, Fifth Amendment protections of due process, Sixth Amendment rights to a public trial by an impartial jury, Fourteenth Amendment equal protection guarantees, and the constitutional assurance of the writ of habeas corpus.12

In addition, some in Congress are now leading legislative efforts to counter some of the more egregious provisions of the law. For instance, an alliance of librarians, booksellers, and citizen groups is working with Representative Bernie Sanders and more than 70 additional sponsors on the "Freedom to Read Protection Act of 2003." If passed, this Act would exempt libraries and bookstores from section 215 and would require a higher standard of proof than mere suspicion for search warrants presented at libraries and bookstores.13 Similarly, Senators Leahy, Grassley, and Specter have introduced the "Domestic Surveillance Act of 2003" to improve the administration and oversight of foreign intelligence surveillance.14

Librarians and booksellers are counting on these efforts, along with public outcry, to stem federal actions that threaten Americans' most valued freedoms without necessarily improving national security. Until the protection of civil liberties reaches a balance with the protection of national security, libraries must affirm their responsibility to safeguard patron privacy by avoiding unnecessary creation and maintenance of personally identifiable information (PII) and developing up-to-date privacy policies that cover the scope of collection and retention of PII in data-related logs, digital records, vendor-collected data, and system backups, as well as more traditional circulation information. In short, if information is not collected, it cannot be released.

If libraries are to continue to flourish as centers for uninhibited access to information, librarians must stand behind their users' right to privacy and freedom of inquiry. Just as people who borrow murder mysteries are unlikely to be murderers, so those seeking information about Osama bin Laden are not likely to be terrorists. Assuming a sinister motive based on library users' reading choices makes no sense and leads to fishing expeditions that both waste precious law enforcement resources and have the potential to chill Americans' inquiry into current events and public affairs.

The millions of American who sought information from their libraries in the wake of September 11 reaffirm an enduring truth: a free and open society needs libraries more than ever. Americans depend on libraries to promote the free flow of information for individuals, institutions, and communities, especially in uncertain times. In the words of Supreme Court Justice William O. Douglas, "Restriction of free thought and free speech is the most dangerous of all subversions. It is the one un-American act that could most easily defeat us."15

 

Nancy Kranich is a Senor Fellow with the Free Expression Policy Project Senior Research Fellow, recent past-president of the American library Association and a Project Censored national judge.

Source:  www.fepproject.org

NOTES

1. USA PATRIOT Act, October 26, 2001, P. L.107-056; 115 STAT. 272, frwebgate.access.gpo.gov/cgi-bin/useftp.cgi?IPaddress=162.140.64.21
&filename=publ056.pdf&directory=/diskb/wais/data/107_cong_public_laws.
Analyses are available at: Center for Democracy and Technology, www.cdt.org/security/usapatriot/analysis.shtml; Congressional Research Service, April 15, 2002, www.fas.org/irp/crs/RL31377.pdf

2. U.S. Department of Justice, Attorney General's Guidelines on Federal Bureau of Investigation Uncercover Operations, May 30, 2002, www.usdoj.gov/olp/fbiundercover.pdf. For analyses of the Guidelines,
see Electronic Privacy Information Center, www.epic.org/privacy/fbi; ACLU, archive.aclu.org/congress/l060602c.html; and the Center for Democracy and Technology, www.cdt.org/wiretap/020530guidelines.shtml. See also: "In Defense of Freedom--Statement of Principles," and Letters to Congress on the Attorney General's Guidelines, June 4, 2002; www.indefenseoffreedom.org.

3. House Judiciary Committee, "Letter from F. James Sensenbrenner (Committee Chair) to Attorney General John Ashcroft regarding the USA PATRIOT Act, June 13, 2002, www.house.gov/judiciary/ashcroft061302.htm. "Response from Ashcroft," July 26, 2002, www.house.gov/judiciary/patriotresponses101702.pdf. "Letter from F. James Sensenbrenner (Committee Chair) to Attorney General John Ashcroft regarding the USA PATRIOT Act," April 1, 2003, www.house.gov/judiciary/patriot040103.htm

For more information about the FOIA request, filed August 22, 2002 and subsequent legal actions, see the ACLU's web pages on Government Surveillance After the PATRIOT Act: www.aclu.org/patriot_foia/index.html; www.aclu.org/patriot_foia/foia2.html; and www.aclu.org/patriot_foia/foia3.html. See also the ACLU Press Release, January 17, 2003, www.aclu.org/SafeandFree/SafeandFree.cfm?ID=11638&c=206

4. Leigh Estabrook, Public Libraries and Civil Liberties: A Profession Divided. (Urbana, IL: U. of Illinois Library Research Center, January 2003), www.lis.uiuc.edu/gslis/research/civil_liberties.html (narrative) and www.lis.uiuc.edu/gslis/research/finalresults.pdf (questionnaire with summary of responses); and Public Libraries' Response to the Events of 9/11. (Urbana, IL: U. of Illinois Library Research Center, Summer 2002), www.lis.uiuc.edu/gslis/research/national.pdf. See also, Leigh Estabrook, "Response Disappointing," American Libraries, September 2002, pps. 37-38.

5. Diane Struzzi, "Legality of Patriot Act Questioned: Some Worry The Law Infringes On Civil Liberties," Hartford Courant, March 23, 2003, p. B1.

6. Dan Malone, "Spies in the Stacks: Is Uncle Sam Watching What You Read? We're Not Allowed to Tell," FW Weekly, April 17, 2003,
www.fwweekly.com/issues/2003-04-17/feature.html/page1.html.

7. Rene Sanchez, "Librarians Make Some Noise Over Patriot Act: Concerns About Privacy Prompt Some to Warn Patrons, Destroy Records of Book and Computer Use," Washington Post, April 10, 2003, p. A20, www.washingtonpost.com/wp-dyn/articles/A1481-2003Apr9.html.

8. "Proposed (CAPPS II) Rules," Federal Register Vol. 68, No. 10, January 15, 2003. For an overview and analysis of CAPPS II, see: Electronic Privacy Information Center, "Passenger Profiling," www.epic.org/privacy/airtravel/profiling.html

9. U.S. Department of Defense, Defense Advanced Research Projects Agency, Information Awareness Office, "Total Information Awareness," www.darpa.mil/iao/TIASystems.htm. For background and analyses, see: Electronic Privacy Information Center, "Total Information Awareness," www.epic.org/privacy/profiling/tia/

10. For a copy of the January 9, 2003 document leaked on February 7, 2003, see: www.publicintegrity.org/dtaweb/downloads/Story_01_020703_Doc_1.pdf.
For analyses, see David Cole, "What PATRIOT II Proposes to Do," February 10, 2003, www.cdt.org/security/usapatriot/030210cole.pdf; ACLU, Interested Persons Memo: Section-by-Section Analysis of Justice Department draft "Domestic Security Enhancement Act of 2003," also known as "PATRIOT Act II," February 14, 2003, www.aclu.org/SafeandFree/SafeandFree.cfm?ID=11835&c=206. See also: Jason Kuiper, "Organizations, lawmakers question proposed Patriot Act II legislation," Daily Nonpareil, April 3, 2003, www.zwire.com/site/news.cfm?newsid=7594285&BRD=2554&PAG= 461&dept_id=507134&rfi=6.

11. For a list of communities passing resolutions or assistance in drafting one for your town, see: The Bill of Rights Defense Committee, Make Your City or Town a Civil Liberties Safe Zone, www.bordc.org/index.html. See also: American Library Association, "Resolution on the USA Patriot Act and Related Measures That Infringe on the Rights of Library Users." (Chicago, IL: American Library Association, January 23, 2003); www.ala.org/Content/NavigationMenu/Our_Association/Offices/Intellectual_ Freedom3 /Statements _and_Policies/IF_Resolutions/Resolution_ on_the_USA_Patriot_Act_and_ Related_Measures_That_Infringe_on_ the_Rights_of_Library_Users.htm;
and USA PATRIOT Act Resolutions of State Library Associations, www.ala.org/Content/NavigationMenu/Our_Association/Offices/ Intellectual_Freedom3/IF_Groups_ and_Committees/State_IFC_Chairs/ State_IFC_in_Action/USA_Patriot_Act_ Resolutions.htm.

12. For an analysis of civil liberties threats, see: Nancy Chang, Silencing Political Dissent: How Post-September 11 Anti-Terrorism Measures Threaten our Civil Liberties (New York: Seven Stories Press, 2002); Nancy Chang, "The State of Civil Liberties: One Year Later -- Erosion of Civil Liberties in the Post 9/11 Era, (New York: Center for Constitutional Rights, 2002) www.ccr-ny.org/v2/whatsnew/report.asp? ObjID =nQdbIRkDgG&Content=153; and Stephen J. Schulhofer, The Enemy Within: Intelligence Gathering, Law Enforcement, and Civil Liberties in the Wake of September 11 (New York: Century Foundation Press, 2002).

13. "Freedom to Read Protection Act of 2003" (Introduced in House), H.R.1157, March 6, 2003.

14. "Domestic Surveillance Oversight Act of 2003" (Introduced in Senate), S. 436, February 25, 2003.

15. William O. Douglas, "The One Un-American Act" (from a speech by Justice Douglas to the Authors Guild Council in New York, December 3, 1952, on receiving the 1951 Lauterbach Award), Nieman Reports, vol. 7, no. 1 (Jan. 1953): p. 20.


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  12 Comments   Comment

  1. lauren from USA

    this article stresses the importance of the patriot act being undemocratic. everything this country was founded on is violated by the patriot act! people dont you get it? if affects YOU!

  2. patriot act HATER from USA

    people, if you arent against the patriot act after reading this article, maybe you should read it AGAIN, or go read our constitution. the patriot act violates everything this country was founded upon. it takes away our privacy, it allows secret spying, it gives government more power and is ABSOLUTELY UNDEMOCRATIC. get it?

  3. Cagliostro from USA

    I fully support the Patriot act. Only when Americans lose their freedoms will they realize the perils of complacency.

    People tend to realize the value of things when they're gone. Good job Dubya !

  4. Romesh Chander from USA

    Who is this so called Patriot Act directed against? Certainly not against terrorists. People don't understand that a good terrorist is a very smart person; he plans meticuously, is fully aware of the strengths and weaknesses of himself as well as the enemy; he always exploits his own strengths and his enemy's weaknesses. So the Patriot Act will not deter a real terrorist. But it will certainly make life hell of ordinary citizens.

    Take the case of Saudi Arabia which is a very tightly controlled country; it has no Patriot Act and does not need one, and does not worry about civil liberties. But terrorists were able to wreak havoc in Riyadh. How did they smuggle weapons there? You cannot stop at your friendly gun shop in Riyadh and buy guns and ammo. How did they smuggle or manufacture dynamite there? Not to be detected, they only used vehicles of US origin (e.g. Ford vans). See, terrorists are very smart people; they can outsmart any security agency in the tightest controlled society.

  5. Yazid from usa

    Salaam-

    The Patriot Act can be viewed as many things and depends mostly on the person looking at it.

    For an Arab it's scary.

    For a good ole boy from the south...it's fine.

    As per Nunyabiz, there is NO report of abuse of the Patriot Act.

    Well, that's because they are all locked up without repersentation...ever think of that?

    The Act will not be truely examined until it's used against an all american Christian or Jew because only then will people realize it does not only apply to terrorists...but to EVERYONE.

  6. mike hale from USA

    Sidebar to Alex: While I am not overtly happy with the Patriot Act I am unhappy with the events that have triggered the government response.

    And I'm sorry to disagree but "Imperialism" would denote that the United States has aquired property on foreign soil as spoils of war. In reality, the only soil the US has acquired is in a cemetary in France where US soldiers who died during WWII in Europe are buried.

  7. Max from USA

    Nunyabiz I'd like to know what brand of crack you've been smoking, its bound to be a hit on the rave scene.

    Your comments clearly demonstrate that you're a fascist pretending to be a patriot, using 9/11 to justify your little rant. Calling civil libertarians and those versed in the Constitution "terrorist sympathizers" and claiming theres " no iota of evidence that the Patriot act has been misused" is an outright lie and smear atempt. I'm pretty sure a .. like you is a fox news addict. Pretending to be a Palestinian with a monicker like "ninyabiz" to lend credence to yourself is truly pathetic.

    But again, lets be honest almost all of you phony patriots are opportunistic .. ... YOU hate the Constituation, YOU hate liberty and YOU hate America. Make no mistake, it is scoundrels like you who have destroyed the Republic.

  8. Nunyabiz from USA

    This article "offended" me so you are very selective I am sure in the opinions allowed to be posted. Terrorists and their sympathizers hate the Patriot Act while we terroist haters (including those of the "Palestinian" Arab persuasion) love it. There has not been one iota of evidence that the Patriot Act has been misused. It is the enemies of the United States of America who have the most objections to it. So be it. We are NOT going to let the terrorists or YOU win PERIOD so forget it. The Patriot Act STAYS! Those who are not doing wrong and committing crimes have NO reason to fear the Patriot Act; those who are doing wrong and supporting terrorism or committing terrorism should be very afraid. "We will not falter; we will not fail": terrorists and their supporters will be hunted down and justice will be dispensed whether you or others like it or not we are NOT going to tie the laws hands so terrorists and their supporters can hire slick lawyers and get out of their just due. So 'forget about it'!

  9. Alex from usa

    This is in responce to Mr. Hale,

    One of the most vital founding principals of this nation is being threatened.

    People who are trying to understand the reasons for terrorism are being silenced.. The institutions and laws that promote free thinking are being compromised..

    And this leads to only a narrow view left.. Which you have.

    We can push our own self-interest agendas and go down a path of a self-fulfilling prophecy of clash of civilizations or we can use our intellect to create a future where our children can live in peace and prosperity.

    And that is not going to happen if we look at terrorism in a single dimension. If you want to STOP terrorism then STOP imperialism and exploitation.

    Peace-

  10. Joseph Nash from USA

    The patriot act is fascist and unconstitutional. It is a betrayal of the freedoms for which my uncle died in France and for which my father came back from Korea in a wheelchair. George Goebels Bush Jr. should be impeached and the warmongering cabal he is a member of should be delivered to the World Court in the Hague for trial as war criminals before they succeed in triggering World War 3 and murdering billions of Women and children.

  11. Zubair Raman from USA

    I live in New York City. You may think me fortunate; the opposite is true.

    We have a mayor who is a DICTATOR. Yes yes that is the truth. Not only does he enact ridulous tax cuts, but he thinking of eliminating EDUCATION. Can you imagine what that will do to NYC? But there is a good side to this misfortune. We, Arabs, can be more educated than our American foes.

    I realize I did not address the topic in question. Please forgive, but I had to state my vews about New York City and America.

    Zibair Raman

  12. mike hale from USA

    The World Trade Center bombing was completed due to government negligence. This negligence stemmed from an inability to monitor behavior of foreign nationals that could utilize Library computers to communicate with other conspirators. The US government is not the problem, it is with Terrorists that wish us harm. One of the major problems in the world today is terrorism, caused by vermin like the men responsible for the WTC bombing.

    This article reminds me of the movie "Diehard". In the movie he blows up the second floor to kill terrorists or thieves. The police in charge scream at him about being covered in glass. He is trying to save the lives of 30 or so hostages. As he so aptly states in the movie "Who gives a shit about glass". Well, the same logic applies here. Stop the terrorism.