The USA Patriot Act: Uncensored

Part I by Herbert Foerstel
Part II by Nancy Kranich

excerpted from the book

Censored 2004

by Peter Phillips and Project Censored

Seven Stories Press, 2003, paper

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."

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GENERAL PROVISIONS

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, or ethnicity.

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 cause.

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 terrorist financing.

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 not removable.

SECTION 504 Links the investigation of any crime with the search for foreign intelligence, including information sharing.

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, or kidnapping."

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.

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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 computers.

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 is respected.

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 intelligence surveillance.

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 <nancy.kranich@nyu.edu>.

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