Is Someone Reading Over Your Shoulder?
Campaign For Reader Privacy
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On June 8, 2004, an FBI agent visited the Deming branch of the Whatcom County Library system in rural Washington, a library not much larger than a family home. The agent, who had no subpoena or warrant, requested the names of all patrons who had borrowed the biography Bin Laden: The Man Who Declared War on America after a reader reported that someone had written "Let history be witness that I am a criminal"—a quote from a 1998 interview with Bin Laden—in the margin of the book.

The library refused to comply with the request, telling the FBI that no library records would be released without a subpoena or court order. The FBI returned a week later with a grand jury subpoena requesting the names and any other identifying information on patrons who had borrowed the book since November 2001. Believing—as we do—that such a subpoena violates the right of Americans to read whatever they wish without government scrutiny, the library filed a motion to quash the subpoena. They argued that the request infringed on the First Amendment rights of readers; that libraries have the right to disseminate information freely and confidentially, without the chilling effects of disclosure; and that Washington Stateís library-confidentiality laws protected the records. Two weeks later, the library was informed that the FBI had withdrawn the subpoena.

There are many disturbing aspects to this incident, not least among them that the FBI showed up first with no warrant at all and demanded the information, and that, had it been successful, the agency would have learned which of Whatcom Countyís residents, for whatever reason, had tried to learn more about the man who ordered the September 11, 2001 terrorist attacks. But the most disturbing aspect is that had the FBI come back not with a grand jury subpoena but with a PATRIOT Act subpoena, the library would have been unable to challenge the request in court, and the reading records of law-abiding patrons may well have made their way into FBI files. Had the FBI secured a Section 215 order from the secret Foreign Intelligence Surveillance Court, the search would have gone forward, and nobody—not even the patrons whose records had been examined— would have known that it had happened.

In fact, it has been extremely difficult for Congress and the American people to get basic answers about how the government has exercised its new PATRIOT Act powers to review the reading records of law-abiding citizens and residents. This is partly due to secrecy requirements built into the PATRIOT Act: A gag order attached to Section 215 prohibits recipients of subpoenas for business or personal records from informing any other person that they have been served. But it is also due to clear resistance on the part of the Justice Department to releasing information even under the terms of the Act and Freedom of Information laws. Congressional oversight committees have repeatedly complained about the quantity and quality of information they have received. Although additional information has been made available in classified briefings, reactions of some who have had access to those briefings are not encouraging. Lee Hamilton, Vice Chair of the 9/11 Commission, told the Senate Judiciary Committee in August 2004 that he has seen classified information that suggests "an astounding intrusion in the lives of ordinary Americans that is routine today in Government."

Citizens groups seeking to exercise the rights of Americans to secure information on the use of Section 215 under the Freedom of Information Act have also encountered resistance from the Justice Department. In 2002, the American Civil Liberties Union, the Electronic Privacy Information Center, the American Booksellers Foundation for Free Expression, and the Freedom to Read Foundation filed a FOIA request for records relating to the PATRIOT Actís most controversial provisions, including Section 206, 213, 214, 215, and 505. The Justice Department did not respond to the request. The groups filed suit and a judge ultimately ordered the government to process the request. A year later, after the Attorney General announced that the FBI had not used Section 215, the group filed a second FOIA request. Again the Justice Department would not comply, triggering a second lawsuit and another court order requiring that the requests be processed.

The documents the government eventually produced confirm several book-community concerns about PATRIOT Act powers. The documents show:

  • that FBI agents have been instructed that they can seek records of individuals not suspected of wrongdoing, using both Foreign Intelligence Surveillance Court subpoenas and National Security Letters (NSLs) that the FBI itself issues with no court review;
  • that recipients of Section 215 subpoenas and NSLs are prevented by gag orders from disclosing the searches to anyone, including the person whose records have been sought;
  • that Section 215 orders have been sought since the Attorney General announced the power had not been used, and that dozens and perhaps hundreds of NSLs have been issued; and
  • that, contrary to Justice Department assertions that Section 215 orders can be challenged, the secret FISA court that issues the orders has no procedural avenues for individuals to appear before it or appeal its decisions.

In late 2004, Justice Department officials began to cite the case of Mohammed Junaid Babar as an example of how it had used Section 215 of the USA PATRIOT Act in libraries and why it needs those powers. In public comments, Deputy Attorney General James B. Comey, Jr. and outgoing Attorney General John Ashcroft alleged that Babar, a suspected al Qaeda associate, used a computer at the New York Public Library to send messages to al Qaeda overseas. Comey and Ashcroft have implied that Section 215 allowed them to monitor Babarís internet use at the library, and that evidence from that surveillance was important in securing a guilty plea in the case.

What the Justice Department does not say is that powers it possessed before 9/11 and before the USA PATRIOT Act would have allowed it to gather this same information. Grand jury subpoenas can be secured on a showing of probable cause to believe that the person whose records are being sought is involved in criminal activity. And the Foreign Intelligence Surveillance Act in its pre-9/11 form allowed the FBI to conduct surveillance on anyone suspected of being a terrorist or an agent of a foreign power. With those powers already at the disposal of law enforcement, the Justice Department has yet to explain convincingly that the power Section 215 gives the FBI to gain access to the bookstore and library records of law-abiding U.S. citizens and residents is anything other than an invitation to abuse.