Patriot Act Intellectual Freedom

8/14/2019 Patriot Act Intellectual Freedom

http://slidepdf.com/reader/full/patriot-act-intellectual-freedom 1/83

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USA Patriot Act &

Intellectual Freedom

Carrie Lybecker Carrie Lybecker

Liza RognasLiza Rognas

Carlos DiazCarlos Diaz

The Evergreen State CollegeThe Evergreen State College

February 28, 2003February 28, 2003



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Patriot History

September 11, 2001September 11, 2001

September 12 Ashcroft instructed staff toSeptember 12 Ashcroft instructed staff to

draft broad authoritiesdraft broad authoritiesCivil libertarians gathered the wagonsCivil libertarians gathered the wagons

September 13 Senate precursor bill adoptedSeptember 13 Senate precursor bill adopted

September 19 Congressional, White HouseSeptember 19 Congressional, White Houseand Justice leaders exchanged proposalsand Justice leaders exchanged proposals

Patriot enacted October 26, 2001Patriot enacted October 26, 2001



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Immediate Opposition

ACLU, Electronic Privacy InformationACLU, Electronic Privacy InformationCenter, Center for Democracy andCenter, Center for Democracy and

Technology, American Association of LawTechnology, American Association of LawLibraries, the American LibraryLibraries, the American LibraryAssociation, Association of ResearchAssociation, Association of ResearchLibraries, Amnesty International, HumanLibraries, Amnesty International, Human

Rights Watch, Physicians for HumanRights Watch, Physicians for HumanRights, Women's International League for Rights, Women's International League for Peace and FreedomPeace and Freedom



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USA Patriot Act

Uniting and Strengthening America byUniting and Strengthening America by

Providing Appropriate Tools Required toProviding Appropriate Tools Required to

Intercept and Obstruct Terrorism Act of Intercept and Obstruct Terrorism Act of 20012001

Public Law 107-56Public Law 107-56

H.R. 3162H.R. 3162



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Patriot Summary

Circumvents 4Circumvents 4 thth Amendment probable causeAmendment probable causerequirement and protections of privacyrequirement and protections of privacy

Vastly increases surveillance and search andVastly increases surveillance and search andseizure powersseizure powers

Allows extensive information sharing amongAllows extensive information sharing amongagenciesagencies

Minimizes or eliminates judicial andMinimizes or eliminates judicial andcongressional oversight and accountabilitycongressional oversight and accountability

Increases government secrecyIncreases government secrecy



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Intellectual Freedom: A

Library ValueIntellectual freedom is the right of everyIntellectual freedom is the right of every

individual to both seek and receiveindividual to both seek and receive

information from all points of view withoutinformation from all points of view withoutrestriction. It provides for free access to allrestriction. It provides for free access to all

expressions of ideas through which any andexpressions of ideas through which any and

all sides of a question, cause or movementall sides of a question, cause or movementmay be exploredmay be explored.—American Library Association,.—American Library Association,

Office for Intellectual FreedomOffice for Intellectual Freedom

http://www.ala.org/alaorg/oif/intellectualfreedomandcensorship.html







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Privacy: A Library Value

The right to privacy is the right to openThe right to privacy is the right to open

inquiry without having the subject of one’sinquiry without having the subject of one’s

interest examined or scrutinized by othersinterest examined or scrutinized by othersPrivacy is essential to the exercise of freePrivacy is essential to the exercise of free

speech, free thought, and free association,speech, free thought, and free association,

andand



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Privacy: A Library Value

Protecting user privacy and confidentialityProtecting user privacy and confidentiality

has long been an integral part of the missionhas long been an integral part of the mission

of librariesof libraries.— .— PrivacyPrivacy: An Interpretation of the: An Interpretation of theLibrary Bill of Rights, American LibraryLibrary Bill of Rights, American Library

AssociationAssociation

http://www.ala.org/alaorg/oif/privacyinterpretation.html





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Historical Precedents:

Libraries1939 Library Bill of Rights1939 Library Bill of Rights

1947 HUAC accused LOC of harboring1947 HUAC accused LOC of harboring

aliensaliens

1948 ALA opposed loyalty oaths1948 ALA opposed loyalty oaths

1953 McCarthy attacked overseas library1953 McCarthy attacked overseas library

collections, books burnedcollections, books burned

1953 ALA Freedom to Read1953 ALA Freedom to Read



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Library Awareness

Program 1960s-1980sFBI infiltrated libraries across nation andFBI infiltrated libraries across nation and

attempted to enlist librarians in theattempted to enlist librarians in the

surveillance and reporting of the librarysurveillance and reporting of the libraryactivities of foreigners, including divulgingactivities of foreigners, including divulging

their names, reading habits, materialstheir names, reading habits, materials

checked out, and their questions tochecked out, and their questions toreference librarians.reference librarians.



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Library Awareness

Program 1960s-1980s““The agents told librarians that they shouldThe agents told librarians that they should

report to the FBI anyone with a ‘foreignreport to the FBI anyone with a ‘foreign

sounding name or foreign soundingsounding name or foreign soundingaccent.’accent.’”—Librarian Herbert Foerstel (University of ”—Librarian Herbert Foerstel (University of

Maryland, author of Maryland, author of Surveillance in the Stacks: The FBI'sSurveillance in the Stacks: The FBI's

Library Awareness Program Library Awareness Program))



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Library Awareness

Program 1960s-1980s““Jaia Barrett of the Association of ResearchJaia Barrett of the Association of Research

Libraries wondered: ‘What’s the next step?Libraries wondered: ‘What’s the next step?

Classifying road maps because they showClassifying road maps because they showwhere bridges are for terrorists to blowwhere bridges are for terrorists to blow

up?’up?’”—Natalie Robbins, “The FBI’s Invasion of ”—Natalie Robbins, “The FBI’s Invasion of

Libraries,”Libraries,” The NationThe Nation April 09, 1988April 09, 1988



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History 1970s

Treasury visited libraries demanding patronTreasury visited libraries demanding patron

recordsrecords

ALA published “Policy onALA published “Policy on ConfidentialityConfidentiality of Library Records” and “Policy onof Library Records” and “Policy on

Government IntimidationGovernment Intimidation””

http://www.ala.org/alaorg/oif/pol_conf.html


http://www.ala.org/alaorg/oif/pol_gov.html






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History 1970s

ALA denounced government use of ALA denounced government use of

informers, electronic surveillance, grandinformers, electronic surveillance, grand

juries, indictments, and spying in libraries, juries, indictments, and spying in libraries,asserting “no librarian would lend himself asserting “no librarian would lend himself

to a role as informant, whether of to a role as informant, whether of

voluntarily revealing circulation records or voluntarily revealing circulation records or identifying patrons and their reading habits”identifying patrons and their reading habits”



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Basic Human RightEveryone has the right to freedom of Everyone has the right to freedom of

opinion and expression; this right includesopinion and expression; this right includes

freedom to hold opinions withoutfreedom to hold opinions withoutinterference and to seek, receive and impartinterference and to seek, receive and impart

information and ideas through any mediainformation and ideas through any media

and regardless of frontiersand regardless of frontiers.—Article 19, Universal.—Article 19, UniversalDeclarationDeclaration of Human Rightsof Human Rights

http://www.un.org/Overview/rights.html





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Civil RightFirst Amendment: religion, speech, press,First Amendment: religion, speech, press,

petition, assembly petition, assembly

Fourth Amendment: privacy, probableFourth Amendment: privacy, probablecausecause

Fifth Amendment: due process of lawFifth Amendment: due process of law



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Fourth Amendment

The right of the people to beThe right of the people to be securesecure inintheir persons, houses, papers, and effects,their persons, houses, papers, and effects,

against unreasonable searches andagainst unreasonable searches andseizuresseizures, shall not be violated, and no, shall not be violated, and noWarrants shall issue, but uponWarrants shall issue, but upon probableprobable

causecause, supported by Oath or affirmation,, supported by Oath or affirmation,

and particularly describing the place to beand particularly describing the place to besearched, and the persons or things to besearched, and the persons or things to beseizedseized



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Probable Cause

A reasonable ground to suspect that aA reasonable ground to suspect that a

person has committed or is committing a person has committed or is committing a

crime or that a place contains specific itemscrime or that a place contains specific itemsconnected with a crime; the facts must beconnected with a crime; the facts must be

such as would warrant a belief by asuch as would warrant a belief by a

reasonable manreasonable manMajor distinction between criminal andMajor distinction between criminal and

intelligence investigationsintelligence investigations



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Criminal vs. Intelligence

InvestigationsCriminal investigations must adhere toCriminal investigations must adhere to

constitutional requirements regardingconstitutional requirements regarding

privacy, probable cause, and due process privacy, probable cause, and due processIntelligence gathering relied on lesser Intelligence gathering relied on lesser

standards, i.e. did not require probablestandards, i.e. did not require probable

cause, as information sought was for cause, as information sought was for intelligence purposes only, not for use inintelligence purposes only, not for use in

criminal investigationscriminal investigations



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Criminal & Intelligence

InvestigationsPatriot blurs or eliminates the distinctionPatriot blurs or eliminates the distinction

between the two, allows gathering of between the two, allows gathering of

evidence for criminal investigations throughevidence for criminal investigations throughthe secretive intelligence process whichthe secretive intelligence process which

does not require probable cause as it wasdoes not require probable cause as it was

intended to gather data about foreign agentsintended to gather data about foreign agents



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History: 1950s-1970s

FBI maintained campaign of surveillance,FBI maintained campaign of surveillance,

disinformation, and disruption targeting Dr.disinformation, and disruption targeting Dr.

Martin Luther Martin Luther KingKing, Jr., Amnesty, Jr., AmnestyInternational, ACLU, antiwar and women’sInternational, ACLU, antiwar and women’s

rights groups; and at therights groups; and at the

University of CaliforniaUniversity of California, the Free Speech, the Free SpeechMovement, students, professors, andMovement, students, professors, and

administrators at UC Berkeley.administrators at UC Berkeley.

http://www.aclu.org/SafeandFree/SafeandFree.cfm?ID=10610&c=207


http://www.sfgate.com/campus/






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History: 1950s-1970s

CIA, by law restricted to intelligenceCIA, by law restricted to intelligence

activities outside US and excluding USactivities outside US and excluding US

persons, illegally spied on 7,000 persons, illegally spied on 7,000Americans, sharing information with FBIAmericans, sharing information with FBI

FBI initiated files on over 1 millionFBI initiated files on over 1 million

Americans, without a single resultingAmericans, without a single resultingconvictionconviction



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History: 1970s

Senate Church Committee, 1975-1976,Senate Church Committee, 1975-1976,

documenteddocumented FBI and CIA abuses in 13FBI and CIA abuses in 13

published volumes published volumesEnacted FISA, the Foreign IntelligenceEnacted FISA, the Foreign Intelligence

Surveillance Act of 1978 to safeguardSurveillance Act of 1978 to safeguard

constitutional rightsconstitutional rights

http://www.derechos.net/paulwolf/cointelpro/cointel.htm





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FISA Purpose

Define FBI domestic surveillance activitiesDefine FBI domestic surveillance activities

relative to collection of foreign intelligencerelative to collection of foreign intelligence

informationinformationProvide judicial and congressionalProvide judicial and congressional

oversightoversight

Prevent political spying and infringementPrevent political spying and infringementon constitutional rightson constitutional rights



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FISA Prior to Patriot

Seven member secret court appointed by SupremeSeven member secret court appointed by Supreme

Court to approve applications for intelligence-Court to approve applications for intelligence-

gatheringgatheringOperates in secret, proceedings are secret,Operates in secret, proceedings are secret,

surveillance is secret, results are secretsurveillance is secret, results are secret

FBI was required to attest (without probableFBI was required to attest (without probable

cause) that the “primary purpose” of thecause) that the “primary purpose” of the

investigation was collection of foreign intelligenceinvestigation was collection of foreign intelligence

informationinformation



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Court’s role was largely to verify thatCourt’s role was largely to verify that

required documents had been submitted andrequired documents had been submitted and

were in order were in order In 20+ year history, court denied one out of In 20+ year history, court denied one out of

more than 10,000 requestsmore than 10,000 requests



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FBI required to identify location, devices,FBI required to identify location, devices,information sought, means of acquisition,information sought, means of acquisition,

durationdurationFBI prohibited from sharing acquiredFBI prohibited from sharing acquired

information with other law enforcementinformation with other law enforcementagencies unless approved by Attorneyagencies unless approved by Attorney

General (the “wall”)General (the “wall”)Surveilled person not notifiedSurveilled person not notified



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FISA After Patriot

Patriot vastly broadens who may bePatriot vastly broadens who may be

surveilled, in what manner, and whatsurveilled, in what manner, and what

information may be collectedinformation may be collectedAllows or mandates information sharingAllows or mandates information sharing

among agenciesamong agencies

Decreases congressional and judicialDecreases congressional and judicialoversightoversight



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Patriot & Libraries

Section 203 Information SharingSection 203 Information Sharing

Section 206 Roving WiretapsSection 206 Roving Wiretaps

Section 213 Sneak & Peek Section 213 Sneak & Peek

Section 214 Pen/Trap-FISASection 214 Pen/Trap-FISA

Section 215 RecordsSection 215 Records

Section 216 Pen/Trap-CriminalSection 216 Pen/Trap-Criminal

Section 218 Foreign Intelligence InfoSection 218 Foreign Intelligence Info





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Section 214: Pen/Trap

A pen register A pen register is a device that capturesis a device that captures

phone numbers dialed, Internet addressing phone numbers dialed, Internet addressing

information such as email addresses, URLsinformation such as email addresses, URLsaccessed, search strings initiatedaccessed, search strings initiated

A trap and trace device identifies the originA trap and trace device identifies the origin

of incoming phone calls or email (electronicof incoming phone calls or email (electronicsignaling)signaling)



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(FISA)Previously, government required to certifyPreviously, government required to certify

that it had reason to believe that thethat it had reason to believe that the

surveillance was being conducted on a linesurveillance was being conducted on a lineor device used by someone or a foreignor device used by someone or a foreign

power or agent involved with international power or agent involved with international

terrorism or intelligence activities thatterrorism or intelligence activities thatviolate US criminal lawsviolate US criminal laws



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(FISA) Now, need only assert that the information Now, need only assert that the information

likely to be obtained is either foreignlikely to be obtained is either foreign

intelligence information about a non USintelligence information about a non US person, or relevant to an ongoing person, or relevant to an ongoing

investigation to collect foreign intelligenceinvestigation to collect foreign intelligence

information or to “protect againstinformation or to “protect againstinternational terrorism or clandestineinternational terrorism or clandestine

intelligence activities,”intelligence activities,”



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(FISA)““ provided that such investigation of a provided that such investigation of a

United States person is not conductedUnited States person is not conducted solelysolely

upon the basis of activities protected by theupon the basis of activities protected by thefirst amendment to the Constitution”first amendment to the Constitution”



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Section 203a: Foreign

Intelligence InformationInformation concerning a US person, thatInformation concerning a US person, that

relates to the ability of the United States torelates to the ability of the United States to

protect against attack, grave hostile acts, protect against attack, grave hostile acts,sabotage, international terrorism, or sabotage, international terrorism, or

clandestine intelligence activities by aclandestine intelligence activities by a

foreign power or its agent; or foreign power or its agent; or



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Section 203a: Foreign

Intelligence Informationinformation, whether or not concerning ainformation, whether or not concerning a

United States person, with respect to aUnited States person, with respect to a

foreign power or territory that relates to theforeign power or territory that relates to thenational defense or the security of thenational defense or the security of the

United States, or theUnited States, or the conduct of theconduct of the

foreign affairs of the United Statesforeign affairs of the United States."."



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Foreign Power:

““Foreign power” includes:Foreign power” includes:

Foreign governmentsForeign governments

Entity controlled by foreign governmentEntity controlled by foreign governmentAA foreign-based political organizationforeign-based political organization,,

not substantially composed of Unitednot substantially composed of United

States persons (50USC1801)States persons (50USC1801)Examples:Examples: Amnesty International,Amnesty International,

International Red Cross, CISPESInternational Red Cross, CISPES



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(FISA)International terrorism includes activitiesInternational terrorism includes activities

that “appear to be intended …to intimidatethat “appear to be intended …to intimidate

or coerce a civilian population” or “toor coerce a civilian population” or “toinfluence the policy of a government byinfluence the policy of a government by

intimidation or coercion”intimidation or coercion”



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Section 203

Information SharingAny investigative or law enforcement officer, or Any investigative or law enforcement officer, or

attorney for the Government who has obtainedattorney for the Government who has obtainedknowledge of the contents of any wire, oral, or knowledge of the contents of any wire, oral, or

electronic communication, or evidence derivedelectronic communication, or evidence derivedtherefrom, may disclose such contents to any other therefrom, may disclose such contents to any other Federal law enforcement, intelligence, protective,Federal law enforcement, intelligence, protective,immigration, national defense, or national securityimmigration, national defense, or national security

official to the extent that such contents includeofficial to the extent that such contents includeforeign intelligence or counterintelligenceforeign intelligence or counterintelligenceinformationinformation



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(FISA)The person/entity surveilled need not beThe person/entity surveilled need not be

suspected of terrorism or any crimesuspected of terrorism or any crime

The specific person or communicationsThe specific person or communicationsdevice or network need not be specifieddevice or network need not be specified

The order includes a gag clause: the personThe order includes a gag clause: the person

served may not disclose its existenceserved may not disclose its existence



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Section 218: Foreign

IntelligencePreviously required to assert that “Previously required to assert that “thethe

purpose”purpose” of the surveillance is to obtainof the surveillance is to obtain

foreign intelligence informationforeign intelligence informationRevised to: “Revised to: “a significant purpose”a significant purpose” of theof the

surveillance is to obtain foreign intelligencesurveillance is to obtain foreign intelligence




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FISC Opinion

In August 2002, FISC took theIn August 2002, FISC took the

unprecedented step of releasing, for the firstunprecedented step of releasing, for the first

time in its history, antime in its history, an opinionopinion regarding theregarding theconduct of the Justice Departmentconduct of the Justice Department

http://www.fas.org/irp/agency/doj/fisa/fisc051702.html





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FISC Opinion

Attorney General asserted that FISA mayAttorney General asserted that FISA may

“be used“be used primarilyprimarily for a law enforcementfor a law enforcement

purpose,” and purpose,” andProposed rules Proposed rules that would allow criminalthat would allow criminal

prosecutors to direct and control prosecutors to direct and control

intelligence investigations, that is, to use theintelligence investigations, that is, to use thesecret FISA process to collect evidence for secret FISA process to collect evidence for

criminal casescriminal cases

http://www.fas.org/irp/agency/doj/fisa/ag030602.html





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FISC Opinion

““This may be because the government isThis may be because the government is

unable to meet the substantiveunable to meet the substantive

requirements” of law applicable to criminalrequirements” of law applicable to criminalinvestigation, andinvestigation, and



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FISC Opinion

““Means that criminal prosecutors will tellMeans that criminal prosecutors will tell

the FBI when to use FISA (perhaps whenthe FBI when to use FISA (perhaps when

they lack probable cause), what techniquesthey lack probable cause), what techniquesto use, what information to look for, whatto use, what information to look for, what

information to keep as evidence and wheninformation to keep as evidence and when

use of FISA can cease because there isuse of FISA can cease because there isenough evidence to arrest and prosecute”enough evidence to arrest and prosecute”



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FISC Opinion

Court revealed its 2000 discovery that FBICourt revealed its 2000 discovery that FBI

had lied in 75 FISA surveillancehad lied in 75 FISA surveillance

applications and was illegally mixingapplications and was illegally mixingintelligence and criminal investigationsintelligence and criminal investigations

In March 2001, government reportedIn March 2001, government reported

similar misstatements in another series of similar misstatements in another series of FISA applicationsFISA applications



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FISC Opinion

The Court found that most of the FBI’sThe Court found that most of the FBI’sillegal activities violating court ordersillegal activities violating court orders

involved information sharing andinvolved information sharing andunauthorized disseminations to criminalunauthorized disseminations to criminalinvestigators and prosecutors. Howinvestigators and prosecutors. Howmisrepresentations on surveillancemisrepresentations on surveillance

applications occurred remained unexplainedapplications occurred remained unexplainedto the Court, almost two years after theyto the Court, almost two years after theywere first discovered.were first discovered.



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FISC Opinion

The court ruled against Ashcroft andThe court ruled against Ashcroft and

ordered the DOJ to retain separationordered the DOJ to retain separation

between criminal and intelligence between criminal and intelligenceinvestigationsinvestigations

The DOJ appealed to the FISA Court of The DOJ appealed to the FISA Court of

Review (FISCR)Review (FISCR)



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FISCR Opinion

The FISCR convened for the first time andThe FISCR convened for the first time and

issued anissued an opinionopinion reversing FISC decision,reversing FISC decision,

citing Patriot’s Sec. 218 language changeciting Patriot’s Sec. 218 language changefrom “the purpose” to “a significantfrom “the purpose” to “a significant

purpose,” and also citing the explicit purpose,” and also citing the explicit

support for that language by severalsupport for that language by severalSenators during Patriot deliberationsSenators during Patriot deliberations

[Democrats Leahy, Edwards, and Feinstein][Democrats Leahy, Edwards, and Feinstein]

http://www.fas.org/irp/agency/doj/fisa/fiscr111802.html









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Carnivore

Its existence wasIts existence was discovereddiscovered in April 2000in April 2000

when ISP Earthlink testified before thewhen ISP Earthlink testified before the

House Judiciary Committee that the FBIHouse Judiciary Committee that the FBIwas requiring it to install Carnivore on itswas requiring it to install Carnivore on its

network network

Congress held hearingsCongress held hearings and exchanged aand exchanged aseries of letters with the FBIseries of letters with the FBI

http://www.epic.org/privacy/carnivore/foia_documents.html





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Carnivore

DOJ commissioned aDOJ commissioned a studystudy by by IIT ResearchIIT Research

Institute and the Illinois Institute of Institute and the Illinois Institute of

Technology Chicago-Kent College of LawTechnology Chicago-Kent College of Law

http://www.epic.org/privacy/carnivore/carniv_final.pdf





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Carnivore

May be used in either “pen” mode, whichMay be used in either “pen” mode, which

records To and From email address and IPrecords To and From email address and IP

addresses, or “full” mode which capturesaddresses, or “full” mode which capturesthe full content of communications, i.e. e-the full content of communications, i.e. e-

mail messages, HTTP pages (web browsingmail messages, HTTP pages (web browsing

contents) , FTP sessions, commands andcontents) , FTP sessions, commands and

data, for instance, search strings initiateddata, for instance, search strings initiated



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Carnivore

Switching between modes requires oneSwitching between modes requires onemouse click to select a radio buttonmouse click to select a radio button

Operator not identified and actions are notOperator not identified and actions are nottraceabletraceable

Program does not maintain a record of itsProgram does not maintain a record of itsown activitiesown activities

““IIt is impossible to trace the actions tot is impossible to trace the actions tospecific individuals”specific individuals”



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Carnivore

Carnivore can perform fine-tunedCarnivore can perform fine-tuned

(“surgical”) searches(“surgical”) searches

It is also capable of broad sweeps.It is also capable of broad sweeps.“Incorrectly configured, Carnivore can“Incorrectly configured, Carnivore can

record any traffic it monitorsrecord any traffic it monitors””

This is a recently declassified FBIThis is a recently declassified FBIschematic depiction of Carnivore:schematic depiction of Carnivore:



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Carnivore

FBI



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Carnivore

IIT Research Institute







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Section 216 & Carnivore

Court authorizes installation of pen/trapCourt authorizes installation of pen/trap

devices anywhere in US whenever andevices anywhere in US whenever an

attorney for government, or a Stateattorney for government, or a Stateinvestigative or law enforcement officer investigative or law enforcement officer

certifies to court that that the informationcertifies to court that that the information

likely to be obtained by such installationlikely to be obtained by such installation

and use is relevant to an ongoing criminaland use is relevant to an ongoing criminal

investigationinvestigation





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Section 216 & Carnivore

Gag clause: the person owning or leasingGag clause: the person owning or leasingthe line to which the pen/trap device isthe line to which the pen/trap device isattached, or who has been ordered by theattached, or who has been ordered by thecourt to provide assistance to the applicant,court to provide assistance to the applicant,[shall] not disclose the existence of the[shall] not disclose the existence of the pen/trap or the existence of the pen/trap or the existence of the

investigation to the listed subscriber, or toinvestigation to the listed subscriber, or toany other person, unless or until otherwiseany other person, unless or until otherwiseordered by the courtordered by the court



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Section 206: Roving

WiretapsPreviously, court order had to identify the specificPreviously, court order had to identify the specific

service, e.g. an ISP or phone company, throughservice, e.g. an ISP or phone company, through

which surveillance would occur which surveillance would occur

Sec 206 allows the interception of anySec 206 allows the interception of any

communications made to or by an intelligencecommunications made to or by an intelligence

target without specifying the particular telephonetarget without specifying the particular telephone

line, computer or other facility to be monitoredline, computer or other facility to be monitored



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Section 206: Roving

WiretapsIncludes gag clause—recipient of order Includes gag clause—recipient of order

prohibited from disclosure prohibited from disclosure





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Section 213: Sneak & Peek

““Authority for Delaying Notice of theAuthority for Delaying Notice of theExecution of a Warrant”Execution of a Warrant”

Eliminates prior requirement to provide aEliminates prior requirement to provide a person subject to a search warrant or order person subject to a search warrant or order with notice of the searchwith notice of the search

With warrant or court order, mayWith warrant or court order, may search for search for

and seize any tangible property or and seize any tangible property or communication, without prior noticecommunication, without prior notice



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Section 215: Records

Under FISA, an FBI official (as low in rank Under FISA, an FBI official (as low in rank

asas Assistant Special Agent in Charge) mayAssistant Special Agent in Charge) may

apply for an “order requiring the productionapply for an “order requiring the productionof any tangible things (including books,of any tangible things (including books,

records, papers, documents, and other records, papers, documents, and other

items) for an investigation to protect againstitems) for an investigation to protect against

international terrorism or clandestineinternational terrorism or clandestine

intelligence activities” …intelligence activities” …



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provided that such investigation of a United provided that such investigation of a United

States person is not conductedStates person is not conducted solely uponsolely upon

the basis of activities protected by thethe basis of activities protected by thefirst amendmentfirst amendment to the Constitutionto the Constitution



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Judge is required to authorize the order if Judge is required to authorize the order if

hehe finds that the “application meets thefinds that the “application meets the

requirements of this section”requirements of this section” The order may notThe order may not disclose that it is issueddisclose that it is issued

for purposes of an intelligence or terrorismfor purposes of an intelligence or terrorism

investigationinvestigation



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Gag clause: “Gag clause: “ No person shall disclose to No person shall disclose to

any other person (other than those personsany other person (other than those persons

necessary to produce the tangible thingsnecessary to produce the tangible thingsunder this section) that the Federal Bureauunder this section) that the Federal Bureau

of Investigation has sought or obtainedof Investigation has sought or obtained

tangible things under this sectiontangible things under this section””



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On a semiannual basis, the AttorneyOn a semiannual basis, the Attorney

General must provide a report to theGeneral must provide a report to the

Permanent Select Committee onPermanent Select Committee onIntelligence of the House of RepresentativesIntelligence of the House of Representatives

and the Select Committee on Intelligence of and the Select Committee on Intelligence of

the Senate specifying total number of the Senate specifying total number of

applications, and number granted, modified,applications, and number granted, modified,

or denied during the preceding 6 monthsor denied during the preceding 6 months



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Libraries Post 9/11

Sept 2001: UCLA library employeeSept 2001: UCLA library employeesuspended for posting email critical of USsuspended for posting email critical of USforeign policyforeign policy

Sept 2001: Florida librarian reportedSept 2001: Florida librarian reportedsuspicious names to FBI, computer recordssuspicious names to FBI, computer recordsseizedseized

Sept 2001: Broward County, Florida librarySept 2001: Broward County, Florida librarydirector subpoenaed for patron informationdirector subpoenaed for patron information



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Libraries Post 9/11

October 2001: Fort Lauderdale and CoralOctober 2001: Fort Lauderdale and Coral

Springs libraries in Florida visited by FBISprings libraries in Florida visited by FBI

Feb 2002: U. of Illinois Library ResearchFeb 2002: U. of Illinois Library ResearchCenter Center surveyedsurveyed 1,020 public libraries—851,020 public libraries—85

had received requests for patronhad received requests for patron


http://www.ala.org/alonline/news/2002/020701.html





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Libraries Post 9/11

July 2002: A St. Petersburg TimesJuly 2002: A St. Petersburg Times editorialeditorial

reported that library staff of Edisonreported that library staff of Edison

Community College reported “three MiddleCommunity College reported “three MiddleEastern-looking men who were whisperingEastern-looking men who were whispering

while using library computers to look upwhile using library computers to look up

Islamic newspapers.” Computer hard drivesIslamic newspapers.” Computer hard drives

were confiscatedwere confiscated

http://www.sptimes.com/2002/07/23/Opinion/A_chill_in_the_librar.shtml





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Libraries Post 9/11

June 2002: FBI sought information about aJune 2002: FBI sought information about a

library patron from the Bridgeview Publiclibrary patron from the Bridgeview Public

Library in ChicagoLibrary in ChicagoJune 2002: Paterson, New Jersey LibraryJune 2002: Paterson, New Jersey Library

Director Cindy Czesak revealed to theDirector Cindy Czesak revealed to the

press, despite a gag order, that the FBI had press, despite a gag order, that the FBI hadvisited there seeking patron informationvisited there seeking patron information



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Patriot in the Library:

CongressIn a June 2002In a June 2002 letter letter to AG John Ashcroft, theto AG John Ashcroft, the

House Judiciary Committee asked 50 questionsHouse Judiciary Committee asked 50 questions

about the implementation of Patriot, including inabout the implementation of Patriot, including in

libraries and bookstoreslibraries and bookstores

In its July 2002In its July 2002 replyreply, the Justice Department, the Justice Department

declined to answer questions impactingdeclined to answer questions impacting

libraries/records, asserting that the informationlibraries/records, asserting that the informationwas “classified”was “classified”

http://www.house.gov/judiciary/ashcroft061302.htm


http://www.fas.org/irp/news/2002/08/doj072602.pdf






77


CongressOctober 2002: House Judiciary Chair October 2002: House Judiciary Chair

Sensenbrenner issued aSensenbrenner issued a press release press release after after

reviewing classified data: “Thereviewing classified data: “TheCommittee’s review of classifiedCommittee’s review of classified

information related to FISA orders for information related to FISA orders for

tangible records, such as library records,tangible records, such as library records,

has not given rise to any concern that thehas not given rise to any concern that the

authority is being misused or abused.”authority is being misused or abused.”

http://www.house.gov/judiciary/news101702.htm





78


CongressBut as the ACLU noted in a subsequentBut as the ACLU noted in a subsequent

lawsuitlawsuit, “He did not undertake to disclose, “He did not undertake to disclose

those answers to the public.”those answers to the public.”

http://www.aclu.org/Files/OpenFile.cfm?id=11278





79

Patriot in Libraries: To the

CourtsThe ACLU, Electronic Privacy InformationThe ACLU, Electronic Privacy Information

Center, American Booksellers Foundation,Center, American Booksellers Foundation,

and Freedom to Read Foundation filedand Freedom to Read Foundation filed suitsuit against the Justice Department for recordsagainst the Justice Department for records

concerning implementation of Patriot inconcerning implementation of Patriot in

libraries and bookstores, after thelibraries and bookstores, after the

Department of Justice failed to respond toDepartment of Justice failed to respond to

Freedom of Information Act requestsFreedom of Information Act requests






80

Concluding Thoughts

We don’t know how Patriot has been usedWe don’t know how Patriot has been used

in libraries, and librarians cannot tell usin libraries, and librarians cannot tell us

without risking prosecutionwithout risking prosecutionLibrarians and the public have a right toLibrarians and the public have a right to

know what information is being collectedknow what information is being collected

about Constitutionally-protected activities,about Constitutionally-protected activities,and to expect government accountabilityand to expect government accountability





82

Concluding Thoughts

The ALA thereforeThe ALA therefore urgesurges all libraries to:all libraries to:

Educate their users, staff, andEducate their users, staff, and

communitiescommunitiesDefend and support privacy and openDefend and support privacy and open

access to knowledge and information,access to knowledge and information,

andand

http://www.ala.org/alaorg/oif/usapatriotresolution.pdf





Concluding Thoughts

Adopt and implement patron privacy andAdopt and implement patron privacy and

record retention policies that affirm thatrecord retention policies that affirm that

‘the collection of personally identifiable‘the collection of personally identifiableinformation should only be a matter of information should only be a matter of

routine or policy when necessary for theroutine or policy when necessary for the

fulfillment of the mission of the library’”fulfillment of the mission of the library’”

Documents

Patriot Act Intellectual Freedom