LizaWasHere

There was a very good story on NPR this morning, about concerns people have over the secret "FISA" or Foreign Intelligence Surveillance court, and the way that the PATRIOT Act extends this secret court’s power to authorize wiretaps that can be used not only in intelligence matters, but now also in criminal matters.

This is a concern, because the Constitution normally requires law enforcement to demonstrate a higher threshold of suspicion before courts will approve criminal wiretaps, plus people suspected of criminal activity have more procedural rights than non-citizens suspected of being foreign intelligence agents. And it is a particular concern because the activities of the FISA Court, which allows or rejects these wiretaps and other subpoenas, operates completely in secret.

The article also links to an email apparently sent by someone in the FBI, which argues that these wonderful new powers haven’t been used, "while radical militant librarians kick us around."

Now, I know some radical librarians. I may even link to some radical librarians. But MOST librarians are not particularly radical. The American Library Association is not particularly radical.

The American Library Association and other library associations raised several concerns about the PATRIOT Act, including questions about the secret court. But their particular focus was on Section 215 of the act, which allows investigators to collect "any tangible thing" including business records, so long as the records are being sought "in connection with" a terror investigation.

What that means is that if the FBI is investigating terrorism, say for example in Detroit, an area with a large Arab-American population, they can go to the local library and request access to any and all records that the library keeps. They can then review the checkout records, the reference requests, and even the Internet logs, of everyone using that library.

Now they MIGHT find useful information related to their anti-terrorism investigation. But they might also find evidence of completely unrelated criminal activity, involving people who they didn’t suspect of anything. Or worse, they might find something that looks like unrelated criminal activity, but is actually innocent. They’ll almost certainly find out information about people that the people would be embarassed to have made public, whether that’s that someone searched for p0rn on the Internet, checked out books on alcoholism, looked up symptoms of STDs, or sent email related to a role-playing romance — "you be the cruel blackmailer and I’ll be the housewife afraid my spouse will find out."

In the past, they wouldn’t have been able to use those records to go after the unrelated suspected criminal activity, because they didn’t have any reasonable suspicion or probable cause to investigate those people before they started their investigation of terrorism.

Librarians aren’t radical militants who want to stop the government from legitimate criminal or terror investigations. But they DO want to protect their patrons’ privacy and intellectual freedom. And what that means is that they think law enforcement agents should only be able to get records that they have reason to believe will help them actually track down terrorists or solve/prevent crimes. They think that rest of us should be able to go to the library and look up embarassing or sensitive material without worrying that anyone is going to find out.

(In the interest of full disclosure, back in 2001, I lobbied on this issue on behalf of the ALA. Unfortunately, my hero Senator Russ Feingold of Wisconsin was the only Member of the US Senate to vote against the PATRIOT Act.)

And if you would like even more detail on this, I strongly recommend that you read my book.