Your Library, Your Privacy, Your Access to Information

by Lesley Pease

Libraries support access to information, freedom of speech, and academic freedom. When people do not have computers of their own or access to the Internet, it is libraries that provide options for free/no fee access and use. Libraries also consider patron privacy and confidentiality to be paramount. “In a political system grounded in an informed citizenry, we are members of a profession explicitly committed to intellectual freedom and the freedom of access to information. We have a special obligation to ensure the free flow of information and ideas to present and future generations” (from the American Library Association Code of Ethics).

With the Patriot Act and other measures emanating from the present federal administration, libraries can no longer protect patron privacy like they used to or ensure access to material that was intended to be available to the public. This article will review a portion of the Patriot Act, one of many current concerns for librarians.

Patriot Act of 2001

The USA Patriot Act of 2001 (PL 107-56) was signed into law on October 26, 2001, after only a single day of hearings. Few legislators had a chance to read the legislation before final votes were counted. This 100+ page act amends more than 15 different statutes, including wiretap, immigration, and money-laundering laws. It provides greater authority to law enforcement in conducting searches and seizures. The portions that impact libraries the most are those that pertain to “computer trespass,” “trap and trace,” and obtaining business records. The Patriot Act’s amendment of ECPA (Electronic Communications Privacy Act) means that evidence or suspicion of terrorism is no longer a necessary precursor to investigation. A person only has to be a subject of an intelligence investigation to be a target.

Investigating authorities can obtain subpoenas without showing reasonable cause. Courts sign for this in secret and cannot notify the public. It is a felony for library or bookstore personnel to tell anyone, including the targeted person, that authorities requested information.

This secrecy, broadness of application, and ability for federal law to trump any state protections just increases the opportunities for abuse. Many remember the scandals of the 1960s and 1970s when the FBI used wiretapping and other methods to infiltrate domestic organizations. Those abuses prompted congressional investigations that put protections in place. Almost every state passed confidentiality laws to protect the privacy of personal records. These protections are now being dismantled on the federal level.

With the Patriot Act, wiretapping authority has expanded into Internet connections. Through “trap & trace” court orders (which are also signed in secret) authorities can collect any dialing, routing, addressing, or signaling information involving “protected computers,” i.e. those that connect to the Internet. (How many computers these days do not connect to the Internet?) The amended ECPA allows law enforcement to obtain “conversational detail” of electronic communications, with the rationale that since they do not include “content” and are similar enough to phone records, they too warrant no more than the relatively low standard required in obtaining phone records. This “conversational detail,” however, can include the identifying string of numbers unique to a computer on the Internet (the IP address) for both the source and destination computers, as well as all email headers, providing significantly more information than a record of a phone call. Email headers contain subject lines; IP addresses can be matched to Web sites. The leap from address to content is much shorter with this technology; some would say it is no leap at all.

Libraries take action

This environment has forced libraries to look closely at the information they do collect and maintain on their customers, so easy to do with present technology, even when not intended. Many libraries are de-coupling identifying and use information, and not keeping identifying information a day longer than they need to. If libraries don’t have the records, they can’t hand them over. And if they don’t need the records, why keep them?

As one example, the Santa Cruz Public Library system has stepped up the pace of their destruction of older library records. They now shred them daily. These records include computer sign-up sheets and reference requests. The Library has also taken a public stance in objecting to this new legislation. They have posted a warning on their web site <http://www.santacruzpl.org/libraryadmin/ljpb/usapatmsg.shtml> alerting patrons that federal agents can legally request library records.
Other libraries have been creative in their use of signs. If they cannot legally notify their users that the FBI has visited, can they tell them that the FBI hasn’t visited?

How has the Patriot Act been used in libraries?

That information is secret, too. In June 2002 a bipartisan committee sent a letter to Attorney General John Ashcroft, requesting data on the number of subpoenas the Justice Department had actually issued to libraries, bookstores and newspapers and asking what, if any, safeguards were in place to prevent abuse. In August 2002, the ACLU filed a Freedom of Information Act request, together with the Electronic Privacy Information Center, the American Booksellers’ Foundation for Free Expression, and the Freedom to Read Foundation. These petitioners saw no reason to hide aggregate statistics from the public, e.g. the total number of times the FBI has relied on its new surveillance powers, and the total number of times it has used these powers against Americans and permanent residents. The Attorney General refused to disclose this basic statistical information. In March of 2003 the ACLU filed papers in federal court challenging the Attorney General’s decision to withhold this information from the American public. Copies of the Justice Department’s internal emails were received, but they are practically useless because of how much text is blacked out. Some blacked out lists are so long that they make readers wonder just how often the new powers have been used. For samples of these documents and government memos describing the new powers, see the ACLU site at <http://www.aclu.org/patriot_foia/>

Hope for patrons of libraries and bookstores

In March 2003, a bill to exempt libraries from the Patriot Act was introduced into the House of Representatives. This bill, H.R. 1157, would restore previous standards for investigations and rescind the provisions of the USA Patriot Act that allow the government to secretly view library and bookstore records without obtaining a search warrant. The bill was introduced by Rep. Bernie Sanders (I-Vt.) and is known as the Freedom to Read Protection Act. “If the FBI has probable cause to believe that information in a library’s or bookseller’s records is connected to an ongoing criminal or terrorism investigation, they can go to court and get a search warrant,” Sanders said. The bill was sent to the House Committee on the Judiciary and the House Committee on Intelligence (Permanent Select), where it sits, as yet unresolved.

For more information on the impact of the Patriot Act on privacy, see these web sites:
• Thomas – Legislative Information on the Internet <http://thomas.loc.gov>

• State Laws on the Confidentiality of Library Records
<http://www.library.cmu.edu/People/neuhaus/state_laws2.html>

• Center for Democracy and Technology <http://www.cdt.org>

• Center for Public Integrity <http://www.publicintegrity.org>

• American Library Association <http://www.publicintegrity.org>

Lesley has been a librarian for 17 years. She is head of the Maps and Government Information Department at Syracuse University Library.