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Photo by Spencer Platt/Getty Images

The Basics

Protesters hold up signs outside of Federal Hall during a demonstration against Attorney General John Ashcroft September 9, 2003, in New York City. Ashcroft was speaking about the progress America has made on the war on terrorism through implementation of the USA PATRIOT ACT.

A Look at the USA PATRIOT Act Today Recent Proposed Legislation to Affect Anti-Terrorism Efforts, Individual Rights by Leah Sandwell-Weiss

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ore than two years after its passage, the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001 is still in the news. Yet depending on who’s doing the talking, opinions of the act vary greatly. AALL recently joined the American Library Association, four states, and 290 cities and counties in passing a resolution against portions of the act. President George W. Bush appears to be making support for expansion and extension of the act a key point in his re-election campaign. The American Civil Liberties Union (ACLU) has stated that it “take[s] away checks on law enforcement and threaten[s] the very rights and freedoms that we are struggling to protect.” Attorney General John Ashcroft and others credit it with breaking down the wall between criminal and intelligence agencies. And other conservatives, ranging from former Representative Bob Barr (R-Ga.) to Phyllis Schlafly, founder and president of Eagle Forum, object to it as a threat to personal privacy and liberty. “Librarians have long believed that protecting every citizen’s right to privacy in their pursuit of knowledge is essential to an open, democratic society,” said AALL President Janis L. Johnston. “Certain provisions of the PATRIOT Act open up library users’ records to law enforcement without the check of a court-issued subpoena. That’s why AALL’s Executive Board passed a resolution in opposition to those provisions. All of us want to thwart terrorism, but AALL believes that can be done without sacrificing everyone’s right to privacy.”

© 2004 Leah Sandwell-Weiss

As law librarians, most of us know the history of the PATRIOT Act. Congress passed the 131-page law in a time of deep national trauma—six weeks after the terrorist attacks of September 11, 2001. While library organizations and civil libertarian groups raised immediate concerns, the administration eventually pushed a version through Congress, even though it had not been thoroughly reviewed. There were no hearings; little legislative history exists. The act passed the House by a vote of 357 to 66 and the Senate by a vote of 98 to 1. The PATRIOT Act amended more than 15 existing statutes. Many of these changes are not tied specifically to terrorism, and many had been proposed prior to September 11, 2001. There are six major sections of the act. Title II: Enhanced Surveillance Procedures—Title II contains the sections that most librarians and civil libertarians worry about, including Section 215 concerning business—including library— records; Sections 214 and 216 dealing with new rules for trap and trace and pen register authority; Section 206 authorizing roving wiretaps under certain circumstances; and Section 213, the “sneak and peak” provision that allows delaying notice of the execution of a search warrant.

PATRIOT Act Resources American Civil Liberties Union www.aclu.org American Library Association www.ala.org/ala/pio/mediarelations/ patriotactmedia.htm Bill of Rights Defense Committee www.bordc.org Center for Democracy and Technology www.cdt.org Electronic Frontier Foundation www.eff.org Electronic Privacy Information Center www.epic.org Technically Legal Signs for Your Library www.librarian.net/technicality.html U.S. Department of Justice www.lifeandliberty.gov

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Title III: International Money Laundering Abatement and AntiTerrorist Financing Act of 2001—Title III amends money laundering statutes. Title IV: Protecting the Border—Title IV contains provisions for screening and tracking non-citizens and for detaining suspected terrorists. Title V: Removing Obstacles to Investigating Terrorism—Title V contains provisions authorizing rewards for information, lowering requirements to issue national security letters in order to get various types of business records without court orders, and permitting greater access disclosure of student records under the Federal Educational Rights and Privacy Act (FERPA). Title VIII: Strengthening the Criminal Laws against Terrorism—Title VIII amends the definitions of various crimes, including domestic terrorism, harboring terrorists, and providing material support or resources to terrorists, and makes other changes to federal criminal law. Title IX: Improved Intelligence— Title IX amends the National Security Act of 1947 to expand the responsibilities of the director of the CIA, add the investigation of international terrorist activities to the definition of foreign intelligence, and require the Department of Justice (DOJ) to “expeditiously” provide foreign intelligence discovered in a criminal investigation to the director of the CIA. Certain sections of the PATRIOT Act are due to expire on December 31, 2005. For example, Sections 206, 214, and 215 will expire, while Sections 213 and 216 will not. However, investigations can still continue into activities covered by the expired sections, if they began or involve activities that occurred before the expiration date. The PATRIOT Act also includes provisions requiring the DOJ to periodically report information about the use of many of the provisions, including Section 215, to Congress. The DOJ has made the required reports, but has classified many of the details.

Objections from Librarians Librarians were in the forefront of opposition to the PATRIOT Act, primarily because of Section 215. Under the earlier version of the Foreign Intelligence Surveillance Act (FISA), a secret FISA court could order the seizure of a limited group of business records—such as lodging, storage, and car rental records—without showing actual probable cause, if the target was “linked to foreign espionage” and an “agent of a foreign power.” There was no

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discretion to turn down an application as long as it met the criteria of the statute, and specifics of the court order had to be kept secret. These provisions, including the secrecy, made sense at the time because the aim was not criminal prosecution, but rather the detection of foreign intelligence activities. Section 215 changed previous law in two ways. First, the foreign espionage/ agent of a foreign power limitation was removed. Instead, the FBI now needs only to establish that the records would be used “for an investigation to protect against international terrorism or clandestine intelligence activities.” U.S. persons, defined as citizens and resident aliens, cannot be investigated solely on their First Amendment activities. However, a U.S. citizen’s records could be seized as part of an investigation into someone else.

records; if there are no records, nothing can be seized. ALA also developed an extensive set of Web pages concerning the PATRIOT Act (www.ala.org/ala/pio/ mediarelations/patriotactmedia.htm). AALL, ALA, and other library organizations presented a satellite teleconference on safeguarding patron privacy in December 2002. One librarian, Jessamyn West, designed humorous “technically legal” signs (available at www.librarian.net/technicality.html) for posting in libraries to warn patrons of possible visits by the FBI. The ACLU (www.aclu.org), Center for Democracy and Technology (www.cdt.org), Electronic Frontier Foundation (www.eff.org), and Electronic Privacy Information Center (www.epic.org) also published materials on their Web sites analyzing the PATRIOT

Luke Frazza/AFP/Getty Images

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President George W. Bush makes remarks on the USA PATRIOT ACT in Hershey, Pennsylvania, on April 19, 2004. Bush has launched a campaign to get an extension of the controversial anti-terrorism legislation.

Section 215 also re-defined the type of records that could be seized to include “any tangible things … for an investigation to protect against international terrorism or clandestine intelligence activities.” These changes, combined with the remaining older provisions (no real discretion to turn down an application and secrecy) led librarians and others to fear that the FBI could and would use this provision in order to seize library records, book store records, and other private records. Most librarians feared this would impact patrons’ rights to privacy and to access information freely. Librarians and library organizations reacted by speaking out and taking action to minimize the retention of patron

Act. The Bill of Rights Defense Committee (www.bordc.org) organized to lobby for and keep track of communities that passed resolutions against the act. In response to growing opposition to the act, the DOJ created a Web site (www.lifeandliberty.gov) to specifically address the PATRIOT Act “myths.” The DOJ stresses the bipartisan and overwhelming support for the act that was present when it passed and lays out the justifications for the provisions in the act. According to the DOJ, the act was needed to allow investigators to use the tools that were already available to investigate organized crime and drug trafficking, facilitate information sharing between

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government agencies, and update the law to take into account new technologies and threats. The Web site also lists the successes the department believes are due to the PATRIOT Act, including the identification and disruption of more than 150 terrorist threats and cells, the discovery and breakup of four terrorist cells, and the launching of 70 investigations into terrorist financing. In late summer of 2003, Ashcroft began a publicity tour to raise support for the act. In a speech given on September 15, he called the concerns about the act “baseless hysteria” and implied that the ALA had been “convinced” by others that the FBI was only interested in finding out what people were reading. Two days later, Ashcroft spoke with ALA President Carla Hayden; shortly thereafter he de-classified information on the number of times DOJ had utilized Section 215: zero.

Litigation Efforts So far only a few cases have been brought challenging portions of the PATRIOT Act. In the relatively few criminal prosecutions involving use of the act, most defendants have chosen to plea bargain rather than risk lengthy jail sentences. Sami Al-Hussayen, an Idaho computer science student, has fought the charges that he conspired to support terrorism by his actions as a Webmaster to Islamic Web sites. His

defense argues that he was a volunteer Webmaster and simply maintained some Web sites and occasionally posted materials protected by the First Amendment. AlHussayen was acquitted of the terrorism charges against him on June 10, 2004. On July 30, 2003, the ACLU filed suit on behalf of six advocacy and community groups whose members and clients believe they are currently the targets of investigations because of their ethnicity, religion, and political associations. This suit specifically challenges the constitutionality of Section 215. The Eastern District of Michigan, Southern Division, heard arguments in the case, Muslim Community Association of Ann Arbor et al. v. John Ashcroft, on December 3, 2003. No decision had been made as of the writing of this article. In Humanitarian Law Project v. Ashcroft, No. CV03-6107 ABC(MCX), 2004 WL 547534 (C.D. Cal. Mar. 21, 2004), a small portion of the act was declared unconstitutional on March 17, 2004, when a judge ruled that the section of the act prohibiting providing “expert advice or assistance” to people designated as “foreign terrorist organizations” was impermissibly vague. However, the judge limited his decision to the specific organizations and individuals who had sued, granting an injunction prohibiting the enforcement of this provision against

them, but finding that the provision was not sufficiently overbroad as to justify a national injunction. In related litigation, the ACLU and other organizations filed a Freedom of Information Act (FOIA) request with the DOJ in August 2002, requesting the release of statistics related to the government’s implementation of the act. After the request was denied, they filed suit; on May 19, 2003, the District Court of the District of Columbia ruled that the information could be withheld on national security grounds (ACLU v. Dept. of Justice, 265 F. Supp. 2d 20 (D.D.C. 2003)). The same parties filed another FOIA request in October 2003 requesting information on the use of Section 215. Suit was filed when the request was denied; the case is still pending. In late April, the ACLU was able to release information about another suit it had filed on April 6 against DOJ, challenging the FBI’s authority to issue national security letters without judicial oversight. In order to prevent violating secrecy requirements, the ACLU had to file the suit under seal and was unable to disclose any information about the litigation until reaching an agreement with the government. Much of the copy of the complaint has been blacked out; the ACLU was not even able to identify the other party filing the complaint.

Table 1: Proposed Anti-Terrorism Related Legislation Name

Bill Number

Provisions

Sponsor

Co-Sponsors

Status

The Antiterrorism Tools Enhancement Act of 2003

H.R. 3037

Would permit the government to seize records and compel testimony in terrorism cases without prior review by a court or grand jury

Rep. Tom Feeney (R-Fla.)

None

Referred to the Subcommittee on Crime, Terrorism, and Homeland Security on October 22, 2003

The Pretrial Detention and Lifetime Supervision of Terrorists Act of 2003

H.R. 3040

Would permit the government to deny bail without proving danger or flight risk for a laundry list of federal crimes said to be terrorism-related (under current law, pretrial detention is available for all federal crimes, but a presumption of detention only applies to terrorism crimes if they are “acts of terrorism transcending national boundaries”)

House: Rep. Bob Goodlatte (R-Va.)

House: 3

House version referred to the Subcommittee on Crime, Terrorism, and Homeland Security on October 22, 2003

Would create a new death penalty for “domestic terrorism” when death results

House: Rep. John Carter (R-Texas)

The Terrorist Penalties Enhancement Act of 2003

S. 1606

H.R. 2934 S. 1604

Senate: 1 Senate: Sen. Jon Kyl (R-Ariz.)

Senate version read twice and referred to the Committee on the Judiciary on September 10, 2003

House: 83 Senate: None

Senate: Sen. Arlen Specter (R-Pa.)

House version referred to the Subcommittee on Crime, Terrorism, and Homeland Security on September 4, 2003; hearings held and amended version sent to full Judiciary Committee on April 21. Senate version read twice and referred to the Committee on the Judiciary on September 10, 2003

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Table 2: Proposed Legislation to Limit the USA PATRIOT Act Name

Bill Number

Provisions

Sponsor

Co-Sponsors

Status

Freedom to Read Protection Act

H.R. 1157

Would prohibit applying for a FISA court order for the sole purpose of searching for, or seizing, patron information from a bookseller or library

Rep. Bernie Sanders (I-Vt.)

145

Referred to the Subcommittee on Crime, Terrorism, and Homeland Security on May 5, 2003

Security and Freedom Ensured (SAFE) Act

H.R. 3352

Would amend PATRIOT Act to require individualized suspicion for searches of library, bookstore, or other sensitive records and prohibit use of national security letters to do such searches; would also put limits on “sneak and peak” searches, add safeguards for “roving wiretaps” in foreign intelligence investigations, and expand sunset and reporting provisions

House: Rep. C.L. Otter (R-Idaho)

House: 63

House version referred to Subcommittee on Crime, Terrorism, and Homeland Security on December 10, 2003

S. 1709

Senate: 19 Senate: Sen. Larry Craig (R-Idaho)

Senate version read twice and referred to the Committee on the Judiciary on October 2, 2003

PATRIOT Oversight Restoration Act of 2003

S. 1695

Would amend the PATRIOT Act to add additional sections to the list of sections that will expire on December 31, 2005

Sen. Patrick Leahy (D-Vt.)

5

Read twice and referred to the Committee on the Judiciary on October 1, 2003

Library and Bookseller Protection Act of 2003

S. 1158

Would exempt bookstores and libraries from orders requiring the production of tangible things for foreign intelligence investigations and would exempt libraries from counterintelligence access to certain records

Sen. Barbara Boxer (D-Calif.)

None

Read twice and referred to the Committee on the Judiciary on May 23, 2003

Bookseller, and Personal Records Privacy Act

S. 1507

Would protect privacy by limiting the access of the government to library, bookseller, and other personal records for foreign intelligence and counterintelligence purposes

Sen. Russ Feingold (D-Wis.)

11

Read twice and referred to the Committee on the Judiciary on July 31, 2003

Protecting the Rights of Individuals Act

S. 1552

Would amend the federal criminal code and FISA to strengthen protections of civil liberties in the exercise of foreign intelligence surveillance

Sen. Lisa Murkowski (R-Alaska)

Senate: 1

Read twice and referred to the Committee on the Judiciary on July 31, 2003

Benjamin Franklin True Patriot Act

H.R. 3171

Would provide for a review of recently enacted legislation relating to terrorism to assure that powers granted do not inappropriately undermine civil liberties

Rep. Dennis Kucinich (D-Ohio)

29

Referred to the Subcommittee Immigration, Border Security, and Claims on October 22, 2003

Surveillance Oversight and Disclosure Act of 2003

H.R. 2429

Would amend FISA to improve the administration and oversight of foreign intelligence surveillance

Rep. Joseph Hoeffel (D-Pa.)

24

Referred to the Subcommittee on Commercial and Administrative Law on June 23, 2003

Proposed Legislation In February 2003, the Center for Public Integrity obtained and released for publication a copy of a draft piece of legislation that was quickly dubbed “PATRIOT Act II.” Key provisions in this legislation, formally known as the Domestic Security Enhancement Act of 2003, would have strengthened provisions against the release of information under FOIA, authorized a DNA database on suspected terrorists, increased the availability of national security letters to search and seize information without judicial oversight, created a new presumption in favor of pretrial detention for individuals charged with terrorist

offenses, and terminated U.S. citizenship in certain cases. The release of the draft created a storm of controversy; DOJ spokespeople stated that it was an early discussion draft, and the department backed away from it. In early September 2003, however, President Bush called for new legislation to expand on the PATRIOT Act. Several bills were introduced within days of this speech that contained some of the same provisions as “PATRIOT Act II.” (See Table 1 on page 12 for a list of these bills and their status as of mid-June 2004.) In December, Bush signed the Intelligence Appropriations Bill, which contained new provisions expanding the use of national security

letters, accomplishing one major change envisioned in “PATRIOT II.” Shortly before this article went to press, Sen. Jon Kyl (R-Ariz.) introduced S. 2476 to repeal the sunset provisions of the PATRIOT ACT. This bill has nine co-sponsors and was sent to the Judiciary Committee on May 21. Opponents of the PATRIOT Act also began introducing legislation in 2003. Some, such as Rep. Bernie Sander’s (I-Vt.) Freedom to Read Act, would place limitations on specific uses of Section 215. In this case, the act would prohibit the use of FISA orders to get library or bookseller’s (continued on page 35)

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patron records. Other legislation, especially, the Security and Freedom Ensured (SAFE) Act, tackled many different provisions. While providing similar limitations on the use of FISA orders to libraries and booksellers, SAFE would also limit the use of “sneak and peak” searches, limit the use of “roving wiretaps,” and expand the reporting requirements on the use of these and other provisions. In January 2004, Ashcroft sent Chairman of the Senate Judiciary Committee Orrin G. Hatch (R-Utah) a letter stating that the SAFE Act would “undermine our ongoing campaign to detect and prevent catastrophic terrorist attacks” and threatening a Bush administration veto. No hearings have been, or are expected to be, scheduled on any of these proposed bills. (See Table 2 on page 13 for a list these bills and their status as of mid-June 2004.)

States are also concerned about the anonymous nature of electronic access; it allows miscreants, such as stalkers, free and easy access to people who should be protected. In Florida, a recent case of abduction became possible when court records containing personal information were placed on the Internet. The case sparked a debate within the community concerning exposure to victims’ confidential data. As a result, clerks of Florida’s county courts ended Web access to their documents, according to the April 29, 2004, edition of the Sarasota-based Herald Tribune. Where is the bright line between the public good of transparency and accountability and the protection of privacy interests? Can anyone define that line? Another salient question in this time of financial crisis for the nations’ courts is, who should pay for public access? Should it be the courts, which are starved for funding? Or the public through a PACER-kind of system, which provides access to federal court information for a fee? If there is a paper and electronic record, with the latter having redacted information, which is the official record? The National Association for Court Management has adopted standards that stipulate that the electronic record should be the official version. During a pilot project last year, the federal courts heard a case of alleged identify theft filed in the Middle District of Florida. The defendants targeted prominent and wealthy individuals who had been charged with crimes in federal court, used the Internet and publicly available federal court records to gather identifying information about these individuals, and used that information to established credit cards and lines of credit. According to investigators, the case did not involve the misuse of documents available via remote pubic access. The defendants allegedly used PACER to track the progress of their victims’ criminal cases,

Keeping Current By the time this article is printed, the courts may have issued some decisions or Congress may have passed legislation affecting the PATRIOT Act. A couple of Web logs are good sources of current information on the status of the USA PATRIOT Act: beSpacific (www.bespacific.com/), written by law librarian Sabrina I. Pacifici, and Behind the Home Front (www.rcfp.org/behindthe homefront/), sponsored by the Reporters Committee for Freedom of the Press. Action Alerts sent out by Mary Alice Baish, AALL’s associate Washington affairs representative, and members of the Government Relations Committee provide another source of information. Whether you approve or disapprove of sections of the PATRIOT Act, it is important for law librarians to remain informed and aware of its potential consequences to our libraries and our patrons. Leah Sandwell-Weiss ([email protected]) is a reference librarian at the law library at the James E. Rogers College of Law in Tucson, Arizona.

but obtained by mail copies of documents filed in federal courts around the country, according to Remote Public Access to Electronic Criminal Case Records: A Report on a Pilot Project in Eleven Federal Courts, a paper prepared in 2003 by the Federal Judicial Center. Despite this case, the respondents to the pilot project in Florida reported seeing no verifiable harm caused by public access to their records.

Why it’s Important No matter what environment law librarians find themselves working in, they will be exposed more and more to this debate. Although technology did not create the problems, it has eliminated the practical obscurity of court records that were only available at remote and relatively inaccessible courthouses. Now the records are visible. How should we define whose privacy should be protected, what data elements must be redacted, and what restrictions on secondary use should be adopted? Along with court officials, those who should be represented at the policy and rulemaking table include data miners, publishers, victims’ advocates, and law librarians. We know how people use information. But more importantly, law librarians— more than any other professional group— are experienced and informed about balancing privacy rights with public access. Judy Meadows ([email protected]) is director of the State Law Library of Montana in Helena. Bob Oakley (oakley@law. georgetown.edu) is director of the law library and professor of law at Georgetown University Law Center in Washington, D.C., and serves as AALL’s Washington affairs representative. Archived materials from the National Conference on Privacy and Public Access to Court Records can be accessed at www. courtroom21.com/privacy.

professional development calendar PDC Desktop Learning Opportunity Series (AALL Spectrum) • “Using Syndetic Solutions to Enrich Web OPAC Catalog Records” by Patricia R. Monk, November 2004 AALL recognizes major support from BNA Inc. for the Professional Development Program.

For more information about Professional Development Program activities, please visit www.aallnet.org/prodev.

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