The USA Patriot Act: Uncensored
Part I by Herbert Foerstel
Part II by Nancy Kranich
excerpted from the book
by Peter Phillips and Project
Seven Stories Press, 2003,
Part I: by Herbert Foerstel
The September 11, 2001, attacks on New
York's World Trade Center set in motion an intense political conflict
within the United States over the proper balance between governmental
power and personal privacy. Only days after the attacks, the FBI
reportedly began installing its "Carnivore" system at
some Internet providers to monitor electronic communications.
The government also wanted unfettered access to telephone records,
e-mail, library records, and the ocean of data assembled by corporations
each day about individuals' personal lives, all to assist in the
hunt for potential terrorists. To accomplish this task, the White
House, the Department of Justice, and their allies in Congress
wanted to remove the restraints on governmental power that had
been imposed in the wake of scandals like Watergate, COINTELPRO,
and the shocking revelations of the earlier Church Committee.
A particular focus of the new "antiterrorist"
coalition was to rewrite the law regarding the Foreign Intelligence
Surveillance Act (FISA), originally created to restrain government
authority to conduct domestic surveillance. This original purpose
of FISA now seemed to be an impediment to the Bush Administration's
desire to expand domestic surveillance, secretly detain terrorism
suspects, control charities and bank accounts, and examine business
databases containing virtually unlimited information about the
private lives of ordinary citizens.
"It's the beginning of a different
epoch," explained award-winning journalist Scott Armstrong.
"It's a conceptual shift in the way government and First
Amendment freedoms interact. We are now in a period where civil
liberties get put to the side while we fight this war against
terrorism. And since it is a war of ideas, it has all of the problems
one would associate with a war against ideas."
The 342-page bill that became law on October
26, 2001 had an elaborate title and a self-righteous acronym:
the Uniting and Strengthening America by Providing Appropriate
Tools to Intercept and Obstruct Terrorism Act (USA Patriot Act).
The massive act is among the most wide-ranging laws ever passed
by Congress, creating new federal offices and new crimes, substantially
amending at least 12 federal statutes, mandating dozens of new
reports and regulations in four cabinet departments, and directly
appropriating $2.6 billion while frequently "authorizing"
unspecified additional amounts.
The act has had three fundamental effects
on American government and society: 1) It introduced unprecedented
government secrecy; 2) It removed checks and balances within our
governing system, specifically weakening the judicial oversight
of the executive branch; 3) It eroded the civil liberties of citizens
and noncitizens alike, allowing secret arrests and detention of
persons based solely on their country of origin, race, religion,
Within its ten titles are numerous sections,
the more prominent of them being:
SECTION 101: Establishes a new counterterrorism
fund without fiscal year limitation and of unnamed amount, to
be administered by the Justice Department.
SECTION 105 Establishes a "national
network of electronic crimes task forces" to be set up by
the Secret Service throughout the country to prevent, detect,
and investigate various electronic crimes.
SECTION 203 Mandates the sharing of "foreign
intelligence" information between numerous federal agencies.
The broad definition of "foreign intelligence" includes
virtually anything related to national defense, national security,
or foreign affairs.
SECTION 206 Provides "roving wire
tap" authority to FISA.
SECTIONS 207 AND 208 Increases the duration
of FISA warrants and increases the number of FISA court judges.
SECTIONS 209, 212, 215, AND 216: Enacts
numerous technical changes and enhancements to standard surveillance
techniques, including the authorization of the government's controversial
"Carnivore" electronic surveillance programs.
SECTION 213 Allows delayed notification
of "nonphysical search warrants," known as "sneak
and peek warrants."
SECTION 214 Allows pen/trap orders concerning
foreign intelligence information.
SECTION 215 Allows federal investigators
to seize "any tangible thing" from libraries and other
institutions in FISA type investigations.
SECTION 216 Explicitly places access to
Internet information, including email and Web browsing information,
within the reach of pen/trap orders, without need to show probably
SECTION 217: Allows any government employee
to conduct electronic content surveillance of U.S. persons.
SECTION 21& Lowers the standard for
obtaining FISA warrants.
SECTIONS 219 AND 220 Establishes single
jurisdiction search warrants and nationwide service of warrants.
SECTIONS 311, 312, 316, AND 319 Allows
federal investigators to impose "special measures" upon
any domestic bank or financial institution and imposes new due
diligence requirements upon such institutions as a way of revealing
SECTION 326 Establishes new or expanded
requirements to track identities of persons opening new bank accounts.
SECTION 358 Allows government investigators
access to consumer records without a court order.
SECTION 411: Creates a new definition
of terrorism, with wide latitude for federal investigators to
identify "terrorist groups."
SECTION 412 Provides for mandatory detention
of suspected aliens, allowing a person to be held for seven days
without charge and possible indefinite detention for aliens deemed
SECTION 504 Links the investigation of
any crime with the search for foreign intelligence, including
SECTIONS 507 AND 50& Allows government
investigators access to educational records without a court order.
SECTION 802 Creates a new crime called
"domestic terrorism," defined as "activity that
involves acts dangerous to human life that violate the laws of
the United States or any state and appear to be intended: (i)
to intimidate or coerce a civilian population; (ii) to influence
the policy of a government by intimidation or coercion; or (iii)
to affect the conduct of a government by mass destruction, assassination,
SECTION 808: Expands the crimes of harboring,
concealing, or providing material support for terrorists.
SECTIONS 809-812 Allows increased penalties
for certain terrorist crimes, with no statute of limitations.
SECTION 901 AND 905 Mandates information
sharing by the CIA with the Justice Department and by the Justice
Department with the CIA.
SECTION 903 Deputizes all "officers
and employees" of the "intelligence community,"
authorizes them to investigate terrorism.
Most of the provisions of the Patriot
Act go well beyond terrorism offenses, applying to all federal
investigations. The loss of judicial oversight of executive power
is one of the more troubling effects of the Patriot Act. Under
many of the act's provisions, the court exercises no review function
whatsoever. For example, the court is often required to grant
government access to sensitive personal information upon the mere
request by a government official. The act also provides only a
minimal standard of review for Internet communications, allowing
law enforcement agents to acquire such information by merely certifying
that it is "relevant" to an investigation. The court
must accept such a claim, and the judge must issue the order even
if he or she finds the certification unpersuasive.
PROVISIONS DIRECTLY AFFECTING LIBRARIES AND BOOKSTORES
The sweeping new surveillance procedures
embodied in the Patriot Act represent a major challenge to privacy
and confidentiality in libraries and bookstores. Sections 214
and 216 concern pen register and "trap and trace" telephone
devices, and new authority in this regard can have implications
for privacy and confidentiality. Section 216 extends telephone
monitoring laws ("pen register" and "trap and trace")
to include routing and addressing information for all Internet
traffic, including e-mail addresses, IP addresses, and URLs of
Web pages. Since virtually all libraries now provide public Internet
terminals, they will become targets of these new surveillance
powers and will be required to cooperate in the monitoring of
a user's electronic communications sent through the library's
Section 214 is similar to Section 216,
applying to "pen register" and "trap and trace"
authority under the Foreign Intelligence Surveillance Act (FISA).
Because Section 214 concerns the secret FISA court, an agent acting
under that section need only claim that the records he seeks may
be related to an ongoing investigation related to terrorism or
intelligence activities, a very low legal standard.
Perhaps the greatest potential danger
to libraries, publishers, and booksellers in the Patriot Act comes
from Section 215: Access to Records Under Foreign Intelligence
Security Act (FISA). This section allows an FBI agent to obtain
a search warrant for "any tangible thing," which can
obviously include books, circulation records and other data, floppy
disks, data tapes, and computer hard drives. The generality of
"any tangible thing" allows the FBI to compel the library
or bookstore to release virtually any personal information it
has maintained, including Internet records and registration information
stored in any medium.
The Freedom to Read Committee of the Association
of American Publishers complains that the Patriot Act "contains
provisions that threaten the First Amendment-protected activities
of book publishers, booksellers, librarians, and readers."
In its statement on "The Patriot Act and the First Amendment,"
the organization warns, "Section 215... threatens the privacy
and First Amendment rights of library patrons and bookstore customers
whose readings choices and Internet usage patterns may be subject
to disclosure despite existing protections for the confidentiality
of library readership records and customer records in bookstores."
Attached to the Freedom to Read Committee's
statement was a form letter that supporters could send to Senator
Patrick Leahy (D-Vermont) and Representative James Sensenbrenner
Jr. (R-Wisconsin) urging them to hold hearings on the Patriot
Act. The letter concluded with the warning: "If people come
to believe that the government can readily obtain access to their
library and bookstore records, they will no longer feel free to
request the books and other materials they want and need out of
a fear that they might become a target of government surveillance."
There are a number of aspects of this
new government surveillance of libraries and bookstores under
Section 215 that make it far more dangerous than what was endured
in the past. As with Section 214, the FBI agent does not need
to demonstrate "probable cause," that is, facts to support
the belief that a crime has been committed or that the data sought
are evidence of a crime. Instead, the agent only needs to claim
that the records sought are "relevant" to an ongoing
investigation related to terrorism or intelligence activities.
Past FBI requests for library records
have required a court-ordered subpoena, which can be challenged
in open court by the library. Under the Patriot Act, a "warrant"
issued by a secret FISA court is sufficient to require the immediate
release of library records, and no court review or adversarial
hearing is available to challenge the process. To make matters
worse, libraries or librarians served with such a warrant may
not disclose, under penalty of law, the existence of the warrant
or the fact that records were produced in response to it.
Another discouraging aspect of library
surveillance under Section 215 of the Patriot Act is the fact
that state library confidentiality laws, passed in 48 of our 50
states, are overridden by these new FBI warrants. Thus, years
of hard work by librarians and state legislators throughout the
land to protect the privacy of library patrons has been undone
by a single federal law.
Section 217 adds a new form of government
surveillance, allowing any government employee, not just a law
enforcement officer, to conduct content surveillance of U.S. persons.
This can occur whenever a computer owner and operator "authorizes"
surveillance and a law enforcement officer "has reasonable
grounds to believe contents of a communication will be relevant"
to an investigation of computer trespass. The section allows interception
of messages sent through a computer without "authorization,"
a term that is not defined, thus leaving the owner/operator and
government agent dangerous discretion in determining a violation.
[The above is excerpted from Herbert Foerstel's
forthcoming book, Refuge of a Scoundrel: The USA Patriot Act in
Libraries (Greenwood Publishing Group/Libraries Unlimited).]
Part II: The USA Patriot Act Impacts Free
Expression in the U.S.
by Nancy Kranich
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
Since 9/11, libraries remain more important
than ever in 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 that does not require
any actual proof or even reasonable suspicion of terrorist activity.
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.
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 (FOIA), regarding the incidence of surveillance activities,
except an admission of snooping in libraries by FBI agents.
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. 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. And an
FW Weekly 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. 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." Nevertheless, many Americans 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. 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. 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.
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.
Citizens and organizations around the
country are standing up and passing resolutions opposing the USA
P Patriot Act and related measures, and are urging local officials
contacted by federal investigators to refuse requests that they
believe violate civil liberties-whether Fourth Amendment rights
guaranteeing freedom from 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.
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. Similarly, Senators Leahy,
Grassley, and Specter have introduced the Domestic Surveillance
Act of 2003 to improve the administration and oversight of foreign
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
0. 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."
Nancy Kranich is a Senior Fellow with
the Free Expression Policy Project Senior Research Fellow, recent
past-president of the American Library Association (ALA) and a
Project Censored national judge. She can be reached at <firstname.lastname@example.org>.