by Teresa Lucas
The American government has always tried to maintain a balance between the security of our nation and the civil liberties of the people. Thur (2009) reminds us that dating back to the eighteenth century, the Sedition Act “took away the rights of non-citizens and criminalized anti-government publications” and during the Civil War, Lincoln suspended “nearly every civil liberty recognized by Bill of Rights, all in the name of preserving the Union”. In 1917, the Espionage Act “punished anarchists and other radicals” (Thur, 2009). In 1940, the Smith Act began the war on domestic Communism. The fifties introduced McCarthyism, in yet another attempt to curb communism. The controversy over wiretaps began in the sixties with the Vietnam controversy.
Terrorism adds a new element to national security. The 1993 car bombing at the World Trade Center in New York City followed by the 1995 destruction of the Murrah Federal Building in Oklahoma City are credited for the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996. The AEDPA eliminated habeas corpus protection for non-citizens, gave authorities the right to label individuals or groups as terrorist, to deny suspicious people from speaking in or visiting the USA and made it a criminal offense for such groups to raise funds for their organization. The events of the nineties laid the foundation for the USA PATRIOT Act (Matz, 2008). (U)Uniting and (S)Strengthening (A)America by (P)Providing (A)Appropriate (T)Tools (R)Required to (I)Intercept and (O)Obstruct (T)Terrorism Act, the USA PATRIOT Act or USAPA was created in an attempt to increase the security of our nation.
After the tragic events of September 11, 2001, Attorney General John Ashcroft created a “wish list” known as the USA PATRIOT act. In only seventy-two hours, the document was approved in the House by a (357-66) majority and a landslide victory in the Senate (98-1), to be signed into law by then President George W. Bush, and became law on October 26, 2001; an unusual speed for any governmental endeavor. “The secrecy in which these laws were passed was unprecedented, and often citizens were not aware that the very people they elected had taken their rights away” (Thur, 2009), all in the name of national security while sacrificing intellectual freedom.
The original USA PATRIOT Act document was over three hundred pages long. Due to the absence of time and the bulk of the document, it is of popular belief that the proposed bill was not read but blindly approved in both houses. The USAPA “is far more expansive and intrusive than any other legislation in the history of the American government.” Prior to 9/11, when law enforcement agents suspected an individual of illegal activity, they were required to “follow the Constitution, and in particular the first and forth Amendments. Agents had to show probable cause that a person was engaged in unlawful conduct” when investigating individuals or groups of people. “All material had to be shown to a judge who then must hear all the facts and approve or deny a search warrant.” Furthermore, people were to be notified and given a “written record of what was searched and an inventory of items seized. Warrants were limited to specific locations and evidence was not shared among various governmental agencies.” The USA PATRIOT Act essentially “stripped Americans of those freedoms.” Authorities “no longer need to be specific about what or whom they are searching. In fact, only a claim needs to be identified that person X is a part of an investigation and neither probable cause nor proof of illegal activity is necessary….the person being investigated does not have to be told of the investigation. If they are notified, a gag order is usually in place so that person is silenced” (Thur, 2009).
Several sections of the USAPA passed under the condition that Congress would review them in depth before December 2005. The sunset provisions affecting libraries included sections 215, 217, 505, 507, 508. Section 215 allows streamlined acquisition of surveillance orders protecting against international crime and terrorism. The FBI and other governmental agencies are given permission to gather information from anyone for any suspicious action. Institutions can be ordered to produce “any tangible thing deemed relevant by the investigating agency”. Search orders include gag orders; institutions served are prohibited from reporting the incident to colleagues, family, friends or the patron being investigated, ever (Matz, 2008). Libraries can be required to turn over patron records and internet search history to governmental officials, and are forbidden from informing the patron or co-workers.
Section 217 requires Internet Service Providers (ISPs) to relinquish internet search history and personal email of patrons using library computers to law enforcement agencies upon request, without a court order or search warrant (Matz, 2008). A request as broad as section 217 entails will not only provide the digital footprint of an individual being investigated, but also of the entire electronic activity of a particular library on a specific day or block of days, again complete with a gag order.
Section 505 follows section 217 in that the FBI can obtain personal records held by banks, credit reporting agencies, medical institutions, telephone companies and ISPs of their clients who may or may not be a person directly suspected of terrorism. Section 505 gives new meaning to the phrase, guilty by association. It also stretches the definition of an ISP to include libraries that provide internet access computers. Section 505 gives authorities another tool used to require libraries to turn over patron internet history.
“Sections 507 and 508 removed privacy protection for personally identifiably histories maintained by educational establishments … contrary to existing policies that upheld total confidentiality of educational records” (Matz, 2008). Academic libraries are required to relinquish student records without a search warrant or a subpoena, complete with the standard gag order.
In theory, the USA PATRIOT Act is a good thing, initiated as an attempt to eradicate terrorism. Stricter laws are in place, authorities are now at liberty to use the tools already in place to fight organized crime and drug trafficking in the war against terrorism. Authorities now can follow suspicious people, unaware. They now have the freedom to share confidential information between governmental agencies. It is now easier for authorities to obtain search warrants for suspected terrorists. Law enforcement officials are now able to utilize the same technological advancements as suspected terrorist. Penalties are harsher for people who commit crimes related to terrorism.
In reality, our constitutionally guaranteed rights described in the First Amendment including the freedom of speech and the Fourth Amendment including the protection from unreasonable search and seizure are now in danger. Excessive legal freedom has given way to the misuse of power resulting in a system with limited accountability. The American people are no longer free; we have unknowingly made it legal for the authorities to intrude on our privacy.
Ten years after the initiation of the USA PATRIOT Act, the American Library Association (ALA) continues to “oppose any use of governmental power to suppress the free and open exchange of knowledge and information or to intimidate individuals exercising free inquiry… ALA considers that sections of the USA PATRIOT Act are a present danger to the constitutional rights and privacy rights of library users.” ALA advises all libraries, “particularly public libraries to seek and work with legal counsel to ensure they understand state confidentiality laws so they may respond quickly to any requests from law enforcement.” Libraries are advised to develop policies directly related to “the confidentiality of information sought or received,” print or electronic, and to have procedures in place should law enforcement request patron records. ALA cautions libraries to cooperate with authorities while remaining “within the framework of the state law” (ALA, 2011).
“The USA PATRIOT Act requires a search warrant, not a subpoena. A search warrant can be executed immediately. A subpoena, on the other hand, allows a party a period of time to respond to and contest the court’s order. An agent or officer serving a search warrant can begin the search as soon as the warrant is served. The library or its employees are entitled to ask the officer to allow them to consult with legal counsel and to ask that the library’s counsel be present for the search, but there is no opportunity or right to quash a search warrant” (ALA, 2005). Libraries are obligated to inform patrons which activities may be “subject to surveillance” by authorities (Hitchcock, 2002).
Thur (2009) reminds readers that “The American Library Association’s [released the] Freedom to Read Statement in 1953; this statement invited librarians and publishers to consider the importance of reading in a democratic society, even if the individual believes the material to be offensive.” Furthermore, it opposes censorship in every form, “providing access to a diversity of ideas”, “stressing that people in a democratic society have a moral obligation to halt governmental intrusion and uphold the values of intellectual freedom” (Thur, 2009). “The evolution of the information age changes only the details, not the commitment to intellectual freedom” (Matz, 2008).
The ALA’s Library Bill of Rights and Codes of Ethics are two popular documents created to provide guidelines for librarians to use in their roles of “defenders of intellectual freedom and pursuers of knowledge” (Thur, 2009). The ALA adopted the Code of Ethics in 1939 and again in 1981, 1995 and most recently in 2008. The Code of Ethics is the eight commandments of the library world. Article III states, “We protect each library user’s right to privacy and confidentiality with respect to information sought or received and resources consulted, borrowed, acquired or transmitted” (ALA, 2008). Libraries provide access to information, intellectual freedom, users right to privacy, protect intellectual property rights of users and provide fair representation of information resources.
The ALA’s Bill of Rights, also adopted in 1939, amended in 1944, 1948, 1961, 1967, 1980 and reaffirmed in 1996 contain six directives expanding on the statement, “The ALA affirms that all libraries are forums for information and ideas, and that the following basic policies should guide their services” (ALA, 1996). In short, the Bill of Rights provides the resources necessary to ensure patrons rights to Intellectual Freedom. “Currently, librarians are one of the largest groups willing to stand up and defend academic and intellectual freedom. They understand better than anyone else that the survival of a democratic society is inextricably interlaced with the free flow of information” (Thur, 2009).
The USA PATRIOT Act directly opposes the basic civil liberties that libraries have developed for patrons over the last century. Contrary to what libraries are all about, the USAPA strips patrons of the very freedoms the ALA and librarians across the land have dedicated their time and resources to provide. “Benjamin Franklin counseled this nation: “They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety” (Platt, 1989).
The very nature of libraries is to provide uncensored resources to the patrons they serve. The assurance of privacy encourages intellectual exploration. To tamper with those rights is to turn back the clock on libraries to the day of Comstockery.
American Library Association. (1996). Library bill of rights. Retrieved from: http://www.ala.org/
American Library Association. (2005). USA patriot act search warrant. Retrieved from: http://www.ala.org/
American Library Association. (2008). Code of ethics of the American library association. Retrieved from: http://www.ala.org/
American Library Association.(2011). The USA patriot act in the library. Retrieved from: http://www.ala.org/
Hitchcock, L. (2002). Idaho libraries and the patriot act. Idaho Librarian. retrieved from http://www.idaholibraries.org/
Matz, C. (2008). Libraries and the USA PATRIOT act: values in conflict. Journal of Library Administration, 47(3), 69-87.
Platt, S. (Ed.). (1989) .Respectfully Quoted: A Dictionary of Quotations Requested from the Congressional Research Service. Washington D.C.: Library of Congress
Thur, V. L. (2009). War, law, and the librarian: the creation, precedence, and passage of the USA PATRIOT act and its effects on libraries. Journal of Access Services, 6(4), 437-445. doi:10.1080/15367960903098838
Teresa Lucas is an MSLS candidate at the University of North Texas. She works at the Moscow branch of the Latah County Library District.