Patriot Act Riles An Unlikely Group
Librarians: Fears About Terrorism Clash With Principles of Privacy
As Online Searches Surge
JUNE KRONHOLZ / Wall Street Journal 28oct03
LOUISVILLE, KY—Gamely, FBI Special Agent David J. Beyer tried to convince three dozen Kentucky librarians that it is unlikely his agency will ever use the USA Patriot Act to search their stacks and records.
The new antiterrorism law gives the Federal Bureau of Investigation the power to rummage through their computers and patron files, yet "never once in my career" had an investigation led him into a library, Mr. Beyer said. Still, he warned that another terrorist attack is "probable," flashed a slide show of the crumbling World Trade Center to drive home his point and begged the librarians not to destroy any records that might help investigators some day. After all, he asked, "How much protection do you want to give to your patrons, and how much protection do you want to give to your country?"
Martha Jane Proctor, her silver hair combed into stiff spikes, was having none of it. An adviser to the libraries in eight counties in eastern Kentucky's coal-field region, Ms. Proctor pronounced the very notion of a library search "an abomination." And destroy records? "Of course. I tell the [library] directors to do it. That's pretty much my opinion," she declared.
"The only vocal concerns I've ever heard" about the Patriot Act "are from the librarians," Mr. Beyer sighed as he left the Kentucky Library Association's annual convention.
The Patriot Act has generated protests from the left and the right since it passed, almost unanimously, six weeks after the Sept. 11, 2001, attacks. But few critics are more stubborn than the librarians, who see it as an assault on such basic civil liberties as reading privacy and intellectual freedom.
Library associations in most states have passed resolutions against the Patriot Act's Section 215, which gives the FBI broader access to the "business records" of people who aren't suspected of any crime. Speaking to Congress this past June, Attorney General John Ashcroft said that could include educational records and genetic data -- and information gathered in libraries.
Libraries that say they might once have kept information on their patrons have purged it in a show of defiance. In Skokie, Ill., library director Carolyn Anthony says the only patron records she now keeps are on Skokie's small population of home-bound borrowers. In tiny Paulding County, Ohio, library director Susan Hill is one of many librarians nationwide who posted signs on public computers warnings users that "due to national security concerns," their "Internet surfing habits, passwords and e-mail content" might be monitored by federal agents.
After being dogged by librarians and other protesters during a cross-country tour to boost support for the Patriot Act, Mr. Ashcroft last month accused librarians of being "duped" by liberals, and for two days running accused them of "hysteria." He also announced that the FBI hadn't requested any business records under the Patriot Act. "Section 215 has not been used. Period. Zero times," says Mr. Ashcroft's spokesman, Mark Corallo, who adds that "the 20% of the people who oppose the Patriot Act get 95% of the publicity."
The Patriot Act gives the FBI broad new authority to investigate terrorism, money laundering and biological weapons and, among other things, allows a special court to approve secret searches, subpoenas and wiretaps. Mr. Beyer, the FBI's chief division counsel in Louisville, says the agency is mainly interested in looking at how suspicious people use the Web, not what books they check out. "The bad guys do the same things we do at our libraries -- use the Internet, use e-mail," he says.
The new search tools worry librarians, who say it's far likelier that fear of an FBI search will dissuade an innocent library user from pursuing provocative research than a bomber from doing evil. "I worry about the immigrant who's afraid to use the Internet and because of that doesn't find a cure for breast cancer," says Emily Sheketoff, who heads the Washington office of the 65,000-member American Library Association.
University of Vermont librarian Trina Magi worries the Patriot Act might dissuade readers from "asking questions and getting answers." Last fall, she took her concerns to the Vermont Library Association, which took them to Bernie Sanders, Vermont's independent U.S. Representative. He agreed to sponsor a bill exempting libraries from Section 215, which 135 representatives have decided to cosponsor.
ON THE BOOKS
Section 215 of the USA Patriot Act
• Allows the FBI to seek "the production of any tangible things (including books, records, papers, documents, and other items)" in an effort to "obtain foreign intelligence information."
• Permits noncitizens to be investigated for activities covered by the First Amendment, including political protests, although "a United States person" continues to receive that protection.
• Allows the FBI to subpoena records that are "sought for" an authorized investigation, even though their owner may not be suspected of criminal or terrorist activity.
• Prohibits someone served with a Patriot Act subpoena from telling anyone else about it.
See full text of the USA Patriot Act, by arrangement with FindLaw (www.findlaw.com).
Two bipartisan bills that would limit Section 215 searches to suspected terrorists or spies also are circulating in the Senate. All three bills face a tough time in the Republican-controlled Congress. The Senate Judiciary Committee has launched a series of hearings that will look into the privacy and civil-liberties implications of antiterrorism laws -- but also will consider whether still more investigative tools are needed.
The Patriot Act is the second spat this year between the librarians and President Bush, whose wife was a school librarian in Texas. In March, the librarians' association and the administration sparred in the U.S. Supreme Court over a law requiring libraries to install pornography filters on their public computers in return for federal funds.
The librarians argued that the filters were a form of censorship, but in June, the court found in the administration's favor. The American Library Association says that at least two dozen counties nationwide have since announced that they'll forego federal library funds rather than install the filters.
The Louisville Free Public Library, like most libraries these days, keeps only the name, address and phone number of its users, and a note about what ID they used to apply for a library card. It knows what book a patron currently has checked out, but deletes any record as soon as the book is returned. It knows who's using its computer today, but deletes any record of what Web sites they visited as soon as they sign off.
But a ramble through the library's computers shows the real battleground: deep pools of information that library users now have access to.
In the public second-floor computer room of the Louisville library, a graceful Carnegie library that opened in 1908, director Craig Buthod logs into an index of databases of academic journals. Most ordinary Web users don't pay to subscribe, but the library does and any Louisville library-card holder can search them. When he types in "bioterrorism," 13,351 titles pop up, along with the computer links to them.
Mr. Buthod next types "bioterrorism" into an online catalog of 45,000 libraries that share their books with each other's patrons. The names of 1,058 books pop up, along with the nearest libraries that carry each of them. It's possible the FBI could retrace the online footprints of these searches. Louisville, like many libraries, doesn't keep records that connect a search and a computer user.
Reader privacy "was beaten into me when I was in graduate school," says Mr. Buthod. So, he says that when FBI agents twice asked his library for information recently -- neither time using a Patriot Act request and neither time presenting a subpoena -- "I declined." One agent asked only for a patron's address, he says.
The FBI's Mr. Beyer says agents made the request in an attempt to find a man who they thought had used a library computer, and a stolen identity, to buy merchandise over the Internet. The other agent, Mr. Buthod says, wanted a list of people who used the library's computers soon after the 9/11 attacks, data he says the library doesn't keep. Mr. Beyer says he can't corroborate Mr. Buthod's assertion.
In the late 1980s, librarians in a half-dozen university research libraries stumbled on FBI agents checking up on the reading habits of some Eastern European patrons. The FBI later admitted it had been conducting a years-long Library Awareness Program in an effort to uncover spies.
But meanwhile, librarians had convinced legislatures in 48 states to pass reading-privacy laws that, in some cases, make revealing library records a criminal offense. "We have history to be worried about Patriot," says Paula Kaufman, the librarian at the University of Illinois. She chanced upon FBI agents questioning a library desk clerk about foreign patrons when she was working at Columbia University in 1987.
Last fall, Leigh Estabrook, director of the University of Illinois's Library Research Center, conducted a poll of 1,505 librarians that led her to conclude that the FBI visited 178 libraries in the year after the 9/11 attacks. The visits weren't under the Patriot Act, she assumes, because the law prohibits anyone served with a Patriot Act subpoena from reporting it.
But some librarians also said that they didn't answer all of Ms. Estabrook's questions because of legal prohibitions, which she concludes means they received FBI visits under the Patriot Act. She puts the number of those visits at 15.
"Wrong, wrong, wrong," responds the Justice Department's Mr. Corallo, calling Ms. Estabrook's conclusions and the implied challenge to Mr. Ashcroft's statement about Section 215 "scurrilous." "The attorney general has declassified the number of times Section 215 has been used and that number is zero," he repeats.
Librarians say their Patriot Act concerns generated little heat for almost a year. Then, in August, Mr. Ashcroft announced a 20-city speaking tour that was to end in Salt Lake City, where he was expected to unveil a Victory Bill to supplement the Patriot Act. The tour focused opposition to the Patriot Act -- not just from librarians but also from conservative and liberal groups that seldom find themselves on the same side of an issue.
Together, the groups turned out 2,000 Patriot Act protesters when Mr. Ashcroft arrived for a speech on Wall Street, and another 1,200 when he showed up at Boston's Faneuil Hall in September. John Whitehead, head of the conservative Rutherford Institute, says he took part in meetings with the librarians and declares himself "invigorated" by their protests. "I thought that was good old American resistance," he adds.
In the resulting tempest, Mr. Ashcroft stopped announcing his travel plans. The Victory Bill hasn't been unveiled, although early drafts suggest it would create a new crime called narco-terrorism, and would criminalize the money-transfer system called "hawala" that's used by many immigrants.
But the Patriot Act remains unchanged. And the FBI's Mr. Beyer, for all his assurances about Section 215, says the threat of terrorism means the FBI will "probably use it sometime. That's why it's on the books."