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Commentary

The Impact of the USA PATRIOT Act on Free Expression

By Nancy Kranich
FEPP Senior Research Fellow

Hours after the terrorist attacks on September 11, 2001, people rushed to libraries to read about the Taliban, Islam, Afghanistan and terrorism. Americans sought background materials to foster understanding and cope with this horrific event. They turned to a place with reliable answers -- to a trustworthy public space where they are free to inquire, and where their privacy is respected.

Since 9-11, libraries remain more important than ever to ensuring the right of every individual to hold and express opinions and to seek and receive information, the essence of a thriving democracy. But just as the public is exercising its right to receive information and ideas -- a necessary aspect of free expression -- in order to understand the events of the day, government is threatening these very liberties, claiming it must do so in the name of national security.

While the public turned to libraries for answers, the Bush Administration turned to the intelligence community for techniques to secure U.S. borders and reduce the possibility of more terrorism. The result was new legislation and administrative actions that the government says will strengthen security. Most notably, Congress passed into law the "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act" (USA PATRIOT Act) just six weeks after the events of September 11. This legislation broadly expands the powers of federal law enforcement agencies to gather intelligence and investigate anyone it suspects of terrorism.

The USA PATRIOT Act contains more than 150 sections and amends over 15 federal statutes, including laws governing criminal procedure, computer fraud, foreign intelligence, wiretapping, and immigration. Particularly troubling to free speech and privacy advocates are four provisions: section 206, which permits the use of "roving wiretaps" and secret court orders to monitor electronic communications to investigate terrorists; sections 214 and 216, which extend telephone monitoring authority to include routing and addressing information for Internet traffic relevant to any criminal investigation; and, finally, section 215, which grants unprecedented authority to the Federal Bureau of Investigation (FBI) and other law enforcement agencies to obtain search warrants for business, medical, educational, library, and bookstore records merely by claiming that the desired records may be related to an ongoing terrorism investigation or intelligence activities -- a very relaxed legal standard which does not require any actual proof or even reasonable suspicion of terrorist activity.1

Equally troubling, section 215 includes a "gag order" provision prohibiting any person or institution served with a search warrant from disclosing what has taken place. In conjunction with the passage of the USA PATRIOT Act, the U.S. Justice Department issued revised FBI guidelines in May 2002 that greatly increase the bureau's surveillance and data collection authority to access such information as an individual's Web surfing habits and search terms.2

These enhanced surveillance powers license law enforcement officials to peer into Americans' most private reading, research, and communications. Several of the Act's hastily passed provisions not only violate the privacy and confidentiality rights of those using public libraries and bookstores, but sweep aside constitutional checks and balances by authorizing intelligence agencies (which are within the executive branch of government) to gather information in situations that may be completely unconnected to a potential criminal proceeding (which is part of the judicial branch of government). The constitutional requirement of search warrants, to be issued by judges, is one such check on unbridled executive power. In addition to the dangers to democracy from such unbridled executive power, it is not clear that these enhanced investigative capabilities will make us safer, for under the new provisions, far more information is going to the same intelligence agencies that were failing to manage the ocean of information they collected prior to September 11.

We do not know how the USA PATRIOT Act and related measures have been applied in libraries, bookstores, and other venues because the gag order bars individuals from making that information public. The executive branch has refused to answer inquiries from members of the House and Senate Judiciary Committees, and from civil liberties groups under the Freedom of Information Act, regarding the incidence of surveillance activities, except an admission of snooping in libraries by FBI agents.3

Officially, librarians are not allowed to comment on FBI visits to examine library users' Internet surfing and book-borrowing habits. Unofficially, though, some details have surfaced. Two nationwide surveys conducted at the University of Illinois after September 11 found that more than 200 out of 1,500 libraries surveyed had turned over information to law enforcement officials.4 A March 2003 article in the Hartford Courant revealed that librarians in Fairfield and Hartford, Connecticut, were visited by the FBI, but only one case involved a search warrant.5 And an FWWeekly article on April 17, 2003, cited a case in New Mexico where a former public defender was arrested by federal agents and interrogated for five hours after using a computer at a Santa Fe academic library, apparently as a result of a chat room statement that President Bush was out of control.6 It is unclear whether any of these incidents involved secret search warrants as authorized under section 215 of the USA PATRIOT Act.

Federal officials claim that the USA PATRIOT Act and related measures have helped quash terrorist attacks. Mark Corallo, a Justice Department spokesman, has assured the public that, "We're not going after the average American. … If you're not a terrorist or a spy, you have nothing to worry about."7 Nevertheless, many American are uncomfortable relying on government officials for assurances that they will protect both civil liberties and national security effectively.

The USA PATRIOT Act is just one of several troubling policies that compromise the public's privacy rights. Another is the Enhanced Computer Assisted Passenger Pre-screening System (CAPPS-II), which profiles airline passengers and provides "No-Fly" watch lists to the Transportation Security Administration.8 The danger here is that all airline passengers are assigned a risk assessment "score" without recourse. As a result, innocent people could be branded security risks on the basis of flawed data and without any meaningful way to challenge the government's determination.

A third example is the Department of Defense Total Information Awareness program that seeks to scan billions of personal electronic financial, medical, communication, education, housing and travel transactions, analyze them utilizing both computer algorithms and human analysis, and then flag suspicious activity.9 Americans innocent of any wrongdoing could be targeted by this system because it will collect information (and misinformation) on everyone, much of which can be misused. Furthermore, a planned identity tracking system could follow individuals wherever they go.

And, finally, not to be overlooked, is the proposed "Domestic Security Enhancement Act of 2003," a more extreme version of the USA PATRIOT Act, which could be introduced in Congress at any time. This proposed legislation, leaked by a Justice Department official to the Center for Public Integrity, would make it easier for the government to initiate surveillance and wiretapping of U.S. citizens, repeal current court limits on local police gathering information on religious and political activity, allow the government to obtain credit and library records without a warrant, restrict release of information about health or safety hazards posed by chemical and other plants, expand the definition of terrorist actions to include civil disobedience, permit certain warrantless wiretaps and searches, loosen the standards for electronic eavesdropping of entirely domestic activity, and strip even native-born Americans of all of the rights of United States citizenship if they provide support to unpopular organizations labeled as terrorist by our government.10

Citizens and organizations around the country are standing up and passing resolutions opposing the USA PATRIOT Act and related measures,11 and are urging local officials contacted by federal investigators to refuse requests that they believe violate civil liberties -- whether Fourth Amendment rights to be free of unreasonable searches and seizures, First Amendment intellectual freedom and privacy rights, Fifth Amendment protections of due process, Sixth Amendment rights to a public trial by an impartial jury, Fourteenth Amendment equal protection guarantees, or the constitutional assurance of the writ of habeas corpus.12

In addition, some in Congress are now leading legislative efforts to counter some of the more egregious provisions of the law. For instance, an alliance of librarians, booksellers, and citizen groups is working with Representative Bernie Sanders and more than 70 additional sponsors on the "Freedom to Read Protection Act of 2003." If passed, this Act would exempt libraries and bookstores from section 215 and would require a higher standard of proof than mere suspicion for search warrants presented at libraries and bookstores.13 Similarly, Senators Leahy, Grassley, and Specter have introduced the "Domestic Surveillance Act of 2003" to improve the administration and oversight of foreign intelligence surveillance.14

Librarians and booksellers are counting on these efforts, along with public outcry, to stem federal actions that threaten Americans' most valued freedoms without necessarily improving national security. Until the protection of civil liberties reaches a balance with the protection of national security, libraries must affirm their responsibility to safeguard patron privacy by avoiding unnecessary creation and maintenance of personally identifiable information (PII) and developing up-to-date privacy policies that cover the scope of collection and retention of PII in data-related logs, digital records, vendor-collected data, and system backups, as well as more traditional circulation information. In short, if information is not collected, it cannot be released.

If libraries are to continue to flourish as centers for uninhibited access to information, librarians must stand behind their users' right to privacy and freedom of inquiry. Just as people who borrow murder mysteries are unlikely to be murderers, so those seeking information about Osama bin Laden are not likely to be terrorists. Assuming a sinister motive based on library users' reading choices makes no sense and leads to fishing expeditions that both waste precious law enforcement resources and have the potential to chill Americans' inquiry into current events and public affairs.

The millions of American who sought information from their libraries in the wake of September 11 reaffirm an enduring truth: a free and open society needs libraries more than ever. Americans depend on libraries to promote the free flow of information for individuals, institutions, and communities, especially in uncertain times. In the words of Supreme Court Justice William O. Douglas, "Restriction of free thought and free speech is the most dangerous of all subversions. It is the one un-American act that could most easily defeat us."15

May 5, 2003

For updates on the "USA PATRIOT" Act, see
The Impact of the USA Patriot Act: An Update
(August 2003),
Section 215 of the USA PATRIOT Act and National Security Letters: An Update (October 2005),
Patriot Act Renewal Stalls in Congress (January 2006),
and
"Patriot" Act Reforms Are Defeated (March 2006).

NOTES

1. USA PATRIOT Act, October 26, 2001, P. L.107-056; 115 STAT. 272, frwebgate.access.gpo.gov/cgi-bin/useftp.cgi?IPaddress=162.140.64.21
&filename=publ056.pdf&directory=/diskb/wais/data/107_cong_public_laws.
Analyses are available at: Center for Democracy and Technology, www.cdt.org/security/usapatriot/analysis.shtml; Congressional Research Service, April 15, 2002, www.fas.org/irp/crs/RL31377.pdf

2. U.S. Department of Justice, Attorney General's Guidelines on Federal Bureau of Investigation Uncercover Operations, May 30, 2002, www.usdoj.gov/olp/fbiundercover.pdf. For analyses of the Guidelines,
see Electronic Privacy Information Center, www.epic.org/privacy/fbi; ACLU, archive.aclu.org/congress/l060602c.html; and the Center for Democracy and Technology, www.cdt.org/wiretap/020530guidelines.shtml. See also: "In Defense of Freedom--Statement of Principles," and Letters to Congress on the Attorney General's Guidelines, June 4, 2002; www.indefenseoffreedom.org.

3. House Judiciary Committee, "Letter from F. James Sensenbrenner (Committee Chair) to Attorney General John Ashcroft regarding the USA PATRIOT Act, June 13, 2002, www.house.gov/judiciary/ashcroft061302.htm. "Response from Ashcroft," July 26, 2002, www.house.gov/judiciary/patriotresponses101702.pdf. "Letter from F. James Sensenbrenner (Committee Chair) to Attorney General John Ashcroft regarding the USA PATRIOT Act," April 1, 2003, www.house.gov/judiciary/patriot040103.htm

For more information about the FOIA request, filed August 22, 2002 and subsequent legal actions, see the ACLU's web pages on Government Surveillance After the PATRIOT Act: www.aclu.org/patriot_foia/index.html; www.aclu.org/patriot_foia/foia2.html; and www.aclu.org/patriot_foia/foia3.html. See also the ACLU Press Release, January 17, 2003, www.aclu.org/SafeandFree/SafeandFree.cfm?ID=11638&c=206

4. Leigh Estabrook, Public Libraries and Civil Liberties: A Profession Divided. (Urbana, IL: U. of Illinois Library Research Center, January 2003), www.lis.uiuc.edu/gslis/research/civil_liberties.html (narrative) and www.lis.uiuc.edu/gslis/research/finalresults.pdf (questionnaire with summary of responses); and Public Libraries' Response to the Events of 9/11. (Urbana, IL: U. of Illinois Library Research Center, Summer 2002), www.lis.uiuc.edu/gslis/research/national.pdf. See also, Leigh Estabrook, "Response Disappointing," American Libraries, September 2002, pps. 37-38.

5. Diane Struzzi, "Legality of Patriot Act Questioned: Some Worry The Law Infringes On Civil Liberties," Hartford Courant, March 23, 2003, p. B1.

6. Dan Malone, "Spies in the Stacks: Is Uncle Sam Watching What You Read? We're Not Allowed to Tell," FW Weekly, April 17, 2003,
www.fwweekly.com/issues/2003-04-17/feature.html/page1.html.

7. Rene Sanchez, "Librarians Make Some Noise Over Patriot Act: Concerns About Privacy Prompt Some to Warn Patrons, Destroy Records of Book and Computer Use," Washington Post, April 10, 2003, p. A20, www.washingtonpost.com/wp-dyn/articles/A1481-2003Apr9.html.

8. "Proposed (CAPPS II) Rules," Federal Register Vol. 68, No. 10, January 15, 2003. For an overview and analysis of CAPPS II, see: Electronic Privacy Information Center, "Passenger Profiling," www.epic.org/privacy/airtravel/profiling.html

9. U.S. Department of Defense, Defense Advanced Research Projects Agency, Information Awareness Office, "Total Information Awareness," www.darpa.mil/iao/TIASystems.htm. For background and analyses, see: Electronic Privacy Information Center, "Total Information Awareness," www.epic.org/privacy/profiling/tia/

10. For a copy of the January 9, 2003 document leaked on February 7, 2003, see: www.publicintegrity.org/dtaweb/downloads/Story_01_020703_Doc_1.pdf.
For analyses, see David Cole, "What PATRIOT II Proposes to Do," February 10, 2003, www.cdt.org/security/usapatriot/030210cole.pdf; ACLU, Interested Persons Memo: Section-by-Section Analysis of Justice Department draft "Domestic Security Enhancement Act of 2003," also known as "PATRIOT Act II," February 14, 2003, www.aclu.org/SafeandFree/SafeandFree.cfm?ID=11835&c=206. See also: Jason Kuiper, "Organizations, lawmakers question proposed Patriot Act II legislation," Daily Nonpareil, April 3, 2003, www.zwire.com/site/news.cfm?newsid=7594285&BRD=2554&PAG= 461&dept_id=507134&rfi=6.

11. For a list of communities passing resolutions or assistance in drafting one for your town, see: The Bill of Rights Defense Committee, Make Your City or Town a Civil Liberties Safe Zone, www.bordc.org/index.html. See also: American Library Association, "Resolution on the USA Patriot Act and Related Measures That Infringe on the Rights of Library Users." (Chicago, IL: American Library Association, January 23, 2003); www.ala.org/Content/NavigationMenu/Our_Association/Offices/Intellectual_ Freedom3 /Statements _and_Policies/IF_Resolutions/Resolution_ on_the_USA_Patriot_Act_and_ Related_Measures_That_Infringe_on_ the_Rights_of_Library_Users.htm;
and USA PATRIOT Act Resolutions of State Library Associations, www.ala.org/Content/NavigationMenu/Our_Association/Offices/ Intellectual_Freedom3/IF_Groups_ and_Committees/State_IFC_Chairs/ State_IFC_in_Action/USA_Patriot_Act_ Resolutions.htm.

12. For an analysis of civil liberties threats, see: Nancy Chang, Silencing Political Dissent: How Post-September 11 Anti-Terrorism Measures Threaten our Civil Liberties (New York: Seven Stories Press, 2002); Nancy Chang, "The State of Civil Liberties: One Year Later -- Erosion of Civil Liberties in the Post 9/11 Era, (New York: Center for Constitutional Rights, 2002) www.ccr-ny.org/v2/whatsnew/report.asp? ObjID =nQdbIRkDgG&Content=153; and Stephen J. Schulhofer, The Enemy Within: Intelligence Gathering, Law Enforcement, and Civil Liberties in the Wake of September 11 (New York: Century Foundation Press, 2002).

13. "Freedom to Read Protection Act of 2003" (Introduced in House), H.R.1157, March 6, 2003.

14. "Domestic Surveillance Oversight Act of 2003" (Introduced in Senate), S. 436, February 25, 2003.

15. William O. Douglas, "The One Un-American Act" (from a speech by Justice Douglas to the Authors Guild Council in New York, December 3, 1952, on receiving the 1951 Lauterbach Award), Nieman Reports, vol. 7, no. 1 (Jan. 1953): p. 20.

BIBLIOGRAPHY

 

 


The Free Expression Policy Project began in 2000 to provide empirical research and policy development on tough censorship issues and seek free speech-friendly solutions to the concerns that drive censorship campaigns. In 2004-2007, it was part of the Brennan Center for Justice at NYU School of Law. The FEPP website is now hosted by the National Coalition Against Censorship. Past funders have included the Robert Sterling Clark Foundation, the Nathan Cummings Foundation, the Rockefeller Foundation, the Educational Foundation of America, the Open Society Institute, and the Andy Warhol Foundation for the Visual Arts.

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