Patriot Act library provision sticking point for Congress
Lawmakers ready to debate extent of government's power over stacks
By Shannon McCaffrey
WASHINGTON | Libraries would hardly seem to be the front line in the war on terrorism, but Congress' debate over renewing the Patriot Act centers largely on whether federal agents should be able to investigate Americans' reading habits.
Both the House of Representatives and the Senate have added restrictions to the 2001 anti-terrorism law's so-called library provision, which has become its most bitterly debated part. It has spawned angry protests, the purging of library records and a host of congressional amendments and bills.
All the criticism is perplexing to the Justice Department, which said earlier this year that it has yet to use the law's power to obtain library or bookstore records.
But the American Library Association says its research shows that since October 2001, law-enforcement officials have contacted libraries at least 200 times for things such as circulation records and computer hard drives. That has left librarians wondering if the FBI is spying in the stacks, even if it might not be using the Patriot Act to do so.
"It tells us that, despite what they're saying, federal law enforcement is indeed interested in libraries," said Patrice McDermott, deputy director of the American Library Association's office of government relations.
In one case, FBI agents wanted to know who had checked out a book about Osama bin Laden after a library patron reported seeing a handwritten note in the margin calling hostility toward America "a religious obligation." The Whatcom County library system in northwest Washington state fought the government subpoena and won.
Law-enforcement officials say some of the Sept. 11, 2001, hijackers used computers at libraries in Florida and New Jersey.
And they note that library records have proved useful in criminal investigations of New York's Zodiac Killer and the Unabomber, although they did not crack either case.
Testifying before Congress earlier this year, Attorney General Alberto Gonzales said "libraries should not become safe havens for people who are here in this country and do want to do harm to other Americans."
The FBI always has been able to get library records. Agents have traditionally used grand jury subpoenas, which require that the records being sought be relevant to a criminal probe. The subpoenas can be challenged before a judge.
Under the Patriot Act, the FBI was given the power to ask a secret spy court for permission to obtain "tangible things" - including library, bookstore, medical or financial records - if they are relevant to a national security investigation.
Recipients have no meaningful way to challenge the demand, and gag orders prevent them from revealing they have received it.
The American Library Association, which has been lobbying to rein in those government powers, asked 1,500 public libraries and 4,000 academic libraries whether they had been contacted by law enforcement since the Patriot Act became law Oct. 26, 2001.
Because of the law's secrecy mandates, the study allowed libraries to reply anonymously and didn't ask whether the contact was made under the Patriot Act.
Five hundred libraries responded.
The majority said they had not been contacted by law enforcement, but 137 libraries reported receiving formal demands, such as a grand jury subpoena. Forty-nine demands came from federal officials, the remainder from state or local law enforcement. Another 66 libraries reported receiving informal law-enforcement requests for information, 24 from federal officials.
The American Library Association said that if the results are extrapolated to include libraries that did not respond, it would mean that some 600 libraries probably had been queried by law enforcement since October 2001.
The study also reported a "chilling effect," with 40 percent of libraries saying patrons had asked about the Patriot Act.
"People don't want the government looking over their shoulder at what they're reading," said Judith Krug, director of the American Library Association's office of intellectual freedom.
Krug said the worry is that the current fight against terrorism will echo the FBI's notorious library awareness program, in which federal agents recruited librarians to help them identify foreigners who were looking at information that might be sensitive to national security.
The program came to light in 1986, thanks to a librarian in New York City.
Krug said the complicity of hundreds of librarians with the FBI back then prompted soul-searching among librarians. Many took pride in being strong advocates of free speech and civil liberties who opposed censorship and book bans, but some fell victim to Cold War culture, she said.
Since then, 48 states and the District of Columbia have passed laws guaranteeing the confidentiality of library records.
The two states that haven't - Kentucky and Hawaii - have opinions from their attorneys general saying the same thing.
Key changes Congress made to the Patriot Act
Several portions of the Patriot Act - including the section dealing with library records - will expire in October unless Congress renews them.
The Senate and the House have passed competing versions and are expected to resolve their differences after they return to Washington from summer recess in September. The Senate version generally places more restrictions on the government than the House one does.
Among the changes:
The Senate version would extend the library-search power for another four years, while the House would extend it for 10 years.
Both the House and Senate versions would impose a stricter standard for obtaining library records. But the Senate version goes further, requiring that records sought pertain to a foreign power, an agent of a foreign power or a person in contact with a suspected agent. The House version requires only a showing that the records be relevant to a counterterrorism or counterespionage investigation.
The House version would require the FBI director approve a request for records from a library or bookstore. The Senate would mandate that the FBI director or his deputy must sign off on demands for library, bookstore, firearms or medical records.
Both the Senate and the House would allow recipients to challenge an order before the secret Foreign Intelligence Surveillance Court, but the Senate version would allow the recipient to challenge the order and the gag rule preventing disclosure of the order.
Both versions would make clear that a person could consult a lawyer without violating the gag rule.