Taking Liberties: The War on Terror and the Erosion of American Democracy (22 page)

7.
The Patriot Act and Library/Business Records

If the lady from Toledo can be required to disclose what she read yesterday and what she will read tomorrow, fear will take the place of freedom in the libraries, bookstores, and homes of the land.
—Justice William O. Douglas (1953)
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Revised Patriot Act Will Make It Illegal to Read Patriot Act.
—The Onion (2003)

American Librarians

It was probably predictable that librarians would be among the first to recognize how great a threat the post-9/11 surveillance regime poses to our First Amendment traditions as well as to our privacy. Among the framers of the Constitution were dedicated librarians. In 1731, Benjamin Franklin convinced his friends to pool their book collections to start the Library Company of Philadelphia, said to be the country’s first subscription library.
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Franklin was so widely admired that a town in Massachusetts decided to name itself in his honor and asked him to bless their choice by donating a church bell. Instead, he sent a crate of books, declaring that “sense” is preferable to “sound.” The town of Franklin claims to have instituted the first American public library when it voted in 1790 to make the books its namesake had provided available to all residents for free.
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Thomas Jefferson, a famously prodigious reader, maintained the largest private collection of books in the country. After the British burned the Library of Congress during the War of 1812, the library was restocked with books from Jefferson’s collection.
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The twenty-first-century librarians of the American Library Association (ALA), custodians of this intellectual tradition, passed a resolution in January 2003 condemning the Patriot Act’s threat to ideas, the fuel of democracy.
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The ALA, which has over 60,000 members, is the oldest library association in the world. Its policy is to oppose “any use of governmental
prerogatives that lead to the intimidation of individuals or groups and discourages them from exercising the right of free expression guaranteed by the First Amendment.”
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To the librarians, libraries are a bulwark of democracy and so spying on people in the library, where ideas are formed and expressed, seems as wrong as spying on them in the voting booth.

The librarians’ concern focused mainly on Patriot Act Section 215, which went far beyond the special treatment of financial institutions by allowing agents to get a court order requiring
any
custodian of records to turn over
any and all
of their customers’ records—business, educational, medical, Internet, and, yes, library records. This court order is even easier to get than the orders in Brandon Mayfield’s case. Instead of following the Fourth Amendment’s usual rule of asking a court to provide a second opinion about whether seizing the records in question is justified, the Patriot Act instructs the court—the secret Foreign Intelligence Surveillance Court again—that it “must” sign an order requiring the custodian to turn over business records (perhaps with a modification or two) as long as the government’s application recites that the information sought is “relevant” to a terrorism investigation. Unlike the FISA order in Brandon Mayfield’s case, these orders are not based on any kind of probable cause or any particular reason to believe that the target is a terrorist. And the agents applying for the order, not judges, make the decision about what is relevant. The provision does contain one caveat: an instruction that people should not be targeted “solely” on the basis of their First Amendment activities.
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But this instruction is easy enough to evade. Under the terms of the statute, one’s religious practices, antiwar activism, or taste in books may become the basis for government investigation as long as the government can also claim some additional reason for wanting to look at someone’s records. And even this feeble limitation is virtually impossible to enforce because both the decision to target someone and the court order happen in secret.

These Just Trust Us orders worried the librarians because they empower government agents to command a world of private information—including the books library patrons check out and e-mails they send or websites they visit on library computers—without any meaningful judicial oversight. No one contended that library records should be sacrosanct—just that in order to protect both First Amendment intellectual and associational rights and Fourth Amendment–oriented privacy concerns, this kind of highly personal information should remain private unless a neutral court agrees with the FBI that a search is justified. Under cover of these pushover orders, the FBI can trawl through the records of innocent people if they think that by doing
so they might find something they would consider “relevant” to a terrorism investigation. “Relevance,” a very open-ended standard, may be viewed by some agents as including the names of people who have checked out biographies of Osama bin Laden or researched how dams are built. Will people think twice about trying to understand Osama bin Laden if they fear that checking out his biography might bring the FBI to their doorstep? Will they hesitate to visit websites of radical political parties, or support groups for HIV-positive patients, if information about what they are reading and thinking is only one easy step away from a government database? These concerns are not just hypothetical. In New Mexico, for example, 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 posting a chat room statement opining that President Bush was out of control.
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The story of the schoolboy who was visited by the FBI after checking out a book on dams for a school project may or may not be apocryphal, but stories like this spread and contribute to an atmosphere of apprehension that is likely to induce self-censorship. This chilling effect can influence people’s decisions and their sense of freedom regardless of whether these court orders are actually being used, and will be magnified to the extent that people believe the orders can and will be used.

Attorney General Ashcroft responded by accusing the librarians of “baseless hysteria.”
⁹
Citing national security considerations, however, he refused to share any information at all about how the suspect provision was actually being implemented. But librarians are not as quiet as their stereotype. Librarians around the country kept asking questions and raising the alarm about this threat to our constitutional values.
¹⁰
Their campaign generated enough public concern that Ashcroft decided to “declassify” information about Section 215’s use and announce that there was no reason for concern because, as of September 2003, that provision had not been used at all.
¹¹
At the time, most librarians did not suspect that this reassurance was quite misleading because the FBI actually was knocking on library doors and demanding information about library patrons—under a different Patriot Act provision. That story will be told in the next chapter.

Post-9/11 was not the first time the FBI attempted to enlist librarians in national security efforts, and not the first time this kind of attempt sparked public outrage. During the 1970s and ’80s, the FBI instituted a secret “Library Awareness” program as part of its Cold War counterintelligence efforts. Librarians, especially at academic libraries, were asked to look out for library users who might be diplomats from hostile powers recruiting spies
or gathering information that might be harmful to our national security—the “agents of foreign powers” cited in the Foreign Intelligence Surveillance Act. Some librarians reported having been asked to track the books checked out by foreigners from Communist countries. A
New York Times
story exposed this program in 1987
¹²
and documented the outraged reactions of librarians at having been asked to take part. The Executive Director of the New York Library Association at the time, Nancy Lian, said:

I find it amazing that a librarian could be supposed to recognize someone who is a national of a hostile power. … Does anyone with an accent come under suspicion? These things are so far removed from the professional duties of a librarian that I find it almost inconceivable that this whole thing is happening.

In response to this episode, forty-eight states passed library confidentiality laws, providing greater privacy protection for library records than for most other business records.
¹³
Although the content of these laws varies, they generally prohibit librarians from turning over patron information except as necessary to comply with a court order.
¹⁴
These laws can be trumped by the Patriot Act, however, even if the court order it countenances is a sham or indeed if the requirement of a court order is entirely eliminated. The federal government, under the United States Constitution’s Supremacy Clause,
¹⁵
is empowered to ignore state laws that get in the way of its investigations.
¹⁶

During the initial Patriot Act debates, Senator Russell Feingold (the only Senator to vote against the Patriot Act) proposed an amendment providing that the Act would not preempt existing federal and state privacy laws. He did not succeed in his effort to maintain preexisting privacy standards that protected library and other sensitive business records from fishing expeditions—by requiring a meaningful court order.
¹⁷
In the years since Feingold’s lonely effort to preserve privacy, Congress has not been wholly unreceptive to the librarians’ crusade. On several occasions Congress came close to enacting special legislation to protect libraries and bookstores by requiring a court order involving an actual decision by a court before seizure of their records. Representative Bernie Sanders’s “Freedom to Read Protection Act”
¹⁸
failed in 2003 when it was wrestled to a 210 to 210 tie because the Republican House leadership left the vote open twice as long as scheduled while they rounded up opposing votes. In June 2005, Sanders tried again and his bill passed the House by a vote of 238–187 but was
not adopted by the Senate.
¹⁹
During the 2005 Patriot Act reauthorization hearings, Section 215 was one of the sections scheduled to sunset, so Congress had to decide whether to renew this provision. The Senate voted to modify Section 215 by raising the standard for obtaining a court order and requiring some showing of an actual connection with terrorism that a court could review. But the House Rules Committee did not allow floor votes on these proposed amendments or on a reprise of Sanders’s bill for special treatment of libraries. And so the court order required by Section 215 remained not much more than a fig leaf for another four years.

Judicial Fumbling

Although Section 215 came to be known as the “library provision” because of the publicity surrounding the librarians’ campaign, the concerns raised by this power to raid business records at will are not limited to libraries and bookstores. Many other businesses and organizations also maintain sensitive records that should not be exposed to fishing expeditions without the protection of a suspicion standard and a court’s second opinion. That is why, pre-9/11, federal privacy laws provided special protection for the confidentiality of educational records,
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for medical records,
²¹
and for privacy on the Internet.
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Those were the laws Feingold’s amendment would have preserved.

After 9/11, freedom of religion was also on the endangered list. By 2003, the leaders of the Muslim Community Association of Ann Arbor, Michigan (MCA), an organization that ran community mosques and Islamic schools, had become very worried that FBI agents would arrive in their offices with a court order to search their records, despite Section 215’s nod to the First Amendment. They knew about the Muslim charities that had been abruptly put out of business on the basis of spurious fact-finding. They knew that FBI or local agents were infiltrating worship services and other meetings following the relaxation of guidelines governing undercover activities in political or religious settings. They had heard the librarians discuss the breadth of the Section 215 orders. And a number of their members had already been visited by the FBI for reasons they did not understand. Homam Albaroudi, for example, reported that the FBI had come to question him on two occasions, just to find out, they said, whether he knew about any conspiracies against the United States. This Syrian-born engineer, who had become a naturalized United States citizen in 1998, was offended by their attentions and their evidently low opinion
of his patriotism, and replied that if he had known of any conspiracies he would have reported them. He was afraid that the FBI had not liked his attitude and might be investigating him, including possibly searching through records about his activities at MCA.
²³

The MCA leaders were also aware that Section 215 contained an automatic and absolute gag provision that prohibited recipients of a court order issued under that section from ever telling anyone they had received such a demand.
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They were concerned that if they were indeed asked to turn over their records under Section 215, the gag provision would then prevent them from speaking out, even if they thought the demand was improperly based on religious profiling. The absolute language of the gag order at the time evidently even prohibited consulting a lawyer or going to court to challenge the constitutionality of the demand for production of records. And so rather than placing themselves in an untenable situation where they would have to risk violating the law in order to challenge it, they decided to preemptively ask the court to find that Section 215 violates the First, Fourth, and Fifth Amendments by exposing records like theirs to easy capture.