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On-Line Issues: B |
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B. New Law Allows Searches
of Library, Bookstore Records
Within days of the attacks on the World Trade Center and the Pentagon, Attorney General John Ashcroft proposed a legislative package “to deter and punish terrorist acts in the United States and around the world, to enhance law enforcement investigatory tools, and for other purposes.” Called “The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001,” or the USA Patriot Act, the bill proposed sweeping changes to more than 15 federal acts addressing immigration, banking, foreign intelligence, foreign relations, and domestic criminal surveillance.
Passage of the Act happened quickly and without much public debate. Neither the House nor the Senate held hearings on the bill, which contained extensive changes to existing criminal law and procedure put forward by the FBI and the Department of Justice long before the Sept. 11 terrorist attacks. Although Sen. Russ Feingold (D-Wis.) made a valiant attempt to introduce language that would have preserved civil liberties, large majorities in both houses passed the USA Patriot Act without significant amendment.
Included in the Act were several provisions amending the Foreign Intelligence Surveillance Act (FISA). Originally passed by Congress in the 1970s, FISA provided the FBI with the necessary legal authority to investigate the acts of foreign agents conducting espionage within the United States. Prior to passage of the USA Patriot Act, the investigations authorized under FISA could only be directed against foreign agents and were limited in scope to particular documents, like car rental records and hotel records, that provided evidence of a foreign agent’s travels in the United States.
The passage of the USA Patriot Act radically changed these rules. Under the amendments promulgated under Section 215 of the Act, the FBI may now obtain “any tangible thing,” including “books, records, papers, documents, or other items.” This definition sweeps in library circulation records, Internet use records, and bookstore records, whether fixed on paper or preserved on a computer’s hard drive.
The FBI agent does not need to demonstrate to the judge that there is “probable cause,” or specific facts to support a belief that the person whose records are sought has committed a crime, nor that the requested records are necessary evidence of a crime. Instead, the agent only needs to allege to a judge sitting on a secret Foreign Intelligence Surveillance Court that the records or items sought are believed to “have relevance” to an ongoing investigation related to terrorism or espionage.
Section 215 also imposes a gag order on any library, bookstore, or other institution that receives a search warrant issued under the FISA rules. The gag order forbids both the institution and its staff from disclosing to anyone that an FBI search took place, or that records were turned over to the FBI. Since the search warrant is obtained by the agent in a confidential legal proceeding without notice to any party, the entire process of search and seizure under FISA remains secret. Neither the public nor the person who is the target of the warrant is allowed to know that the person is the subject of an FBI investigation.
Other USA Patriot Act provisions amend the laws governing electronic surveillance and wiretapping. Changes to the Electronic Communications Privacy Act (ECPA) allow both federal and state law enforcement officials to use pen registers or “trap and trace” devices to obtain any type of routing and addressing information for any kind of Internet traffic, including e-mail addresses and the URLs of the pages a person visits on the Internet.
As a result, law enforcement officers possessing a trap and trace order issued under the amended law can now attach a recording device to any equipment that provides Internet access or e-mail without having to show probable cause. This has the effect of granting those officers access to personal information without the judicial oversight traditionally given to criminal investigations.
Organizations representing libraries, booksellers, and publishers joined with other civil liberties organizations to alert the public to the threat these provisions of the USA Patriot Act posed to civil liberties, intellectual freedom, and privacy rights. After a series of newspaper articles and broadcast media reports publicized the new laws, Reps. John Conyers (D-Mich.) and James Sensenbrenner (R-Wis.), the bipartisan chairs of the House Judiciary Committee, sent a letter to the Department of Justice and Attorney General Ashcroft asking for a detailed report on how the FBI and other federal law enforcement agencies were utilizing the new law. The letter, dated June 13, 2002, asked specifically for information on the numbers of warrants issued to libraries and bookstores.
After initially refusing to supply the requested information, the Department of Justice finally provided the Judiciary Committee with a series of letters asserting that much of the requested information concerning the DOJ’s implementation of the USA Patriot Act was classified. Among the information deemed “secret” were the data and facts concerning the use of FISA (Section 215) warrants in libraries and bookstores.
Consequently, the American Booksellers Foundation for Free Expression (ABFFE), the Electronic Privacy Information Center (EPIC), and the American Civil Liberties Union (ACLU) joined forces to file a Freedom of Information Act request with the Department of Justice seeking information on the use and implementation of the USA Patriot Act. Among their inquiries was a request to provide information on the number of times the FBI or DOJ had directed a library or bookstore to produce the titles of books an individual had purchased or borrowed, or the identity of individuals who had purchased or borrowed certain books.
When the DOJ failed to supply the requested information in a timely fashion, and did not indicate when it might produce its data, the Freedom To Read Foundation, ABFFE, EPIC, and the ACLU filed suit under the Freedom of Information Act. In their complaint for injunctive relief, filed on Oct. 24, 2002, the four organizations asked the court to compel the DOJ to produce the information sought by the original FOIA request.
After a hearing on Nov. 26, Judge Ellen Huvelle of the U.S. District Court for the District of Columbia ordered the DOJ to disclose what documents it would produce to the four plaintiffs by Jan. 15, 2003. On Jan. 16, the agency released 200 heavily redacted pages. As of this writing, it is expected that further litigation will follow challenging DOJ’s classification of documents.
In August 2002, the Foreign Intelligence Surveillance Court (FISC), the judicial body empowered to issue search warrants and wiretap orders authorized under the Foreign Intelligence Surveillance Act, in an unprecedented action, made public a decision issued on May 17, 2002. In it, the FISC rejected the expanded surveillance guidelines issued by Attorney General Ashcroft following passage of the USA Patriot Act.
The court found that the new guidelines “are designed to enhance the acquisition, retention, and dissemination of evidence for law enforcement purposes,” rather than “being consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information,” as mandated by the statutes authorizing FISA (emphasis added). In support of its decision, the FIS Court documented 75 cases in which the DOJ and FBI made serious errors or misrepresentations in their applications for foreign surveillance warrants and orders.
Attorney General Ashcroft and the Department of Justice immediately appealed the FISC’s decision to the FIS Court of Review, a body appointed by Chief Justice William Rehnquist under the provisions of FISA. After the FIS lower court disclosed its initial decision to the public, several civil liberties groups sought leave to file amicus curiae briefs before the court of review on behalf of U.S. citizens. When granted permission to file their briefs, the groups urged the FIS review court to uphold the lower court’s decision limiting the ability of the FBI and the Department of Justice to use the looser FISA rules for law enforcement purposes.
On Nov. 18, 2002, the FIS review court overruled the lower court, holding that the expanded surveillance guidelines implemented under the USA Patriot Act are “constitutional because the surveillances it authorizes are reasonable.” In response to the ruling, Attorney General Ashcroft announced the development of a computer system to help investigators get quick court approval for surveillances, a doubling of the number of FBI attorneys who will handle surveillance applications, and the appointment of a lawyer at each of the nation’s U.S. attorney’s offices to serve as the contact person for the cases.
No review of the FIS Court of Review is expected, as only the government has a right to request review of the ruling under the rules imposed by FISA.
In the wake of these actions, local citizens’ groups began to organize to protest the USA Patriot Act. As a result of their efforts, more than 20 cities in the United States passed resolutions in 2002 urging the federal government to repeal the USA Patriot Act and to respect the civil liberties of citizens when fighting terrorism. Several of the cities have included language that provides some legal justification for local authorities to resist cooperating with federal agents when they believe an investigation is compromising civil liberties and constitutional rights. Groups in 60 other cities were hoping to persuade their local governments to adopt similar measures in 2003.
A group of Vermont librarians, representing the Vermont Library Association, wrote to their congressional delegation in October 2002. They expressed their fear that they would be prosecuted under the USA Patriot Act for adhering to their profession’s ethical mandate to protect library users’ right to privacy. As a result of their letter, Rep. Bernie Sanders (I-Vt.) announced on Dec. 20, 2002 that he would introduce legislation to repeal the provisions of the USA Patriot Act that permitted the FBI to obtain library and bookstore records under the expanded FISA surveillance rules. Rep. Sanders anticipated bipartisan support for the measure, which he planned to introduce in February 2003.
In a case that predated the USA Patriot Act, the Colorado Supreme Court ruled unanimously on April 8, 2002 that the Denver suburb of Thornton had acted in error in pursuing a search warrant against the Tattered Cover bookstore. The city had failed to demonstrate that its need for information was sufficiently compelling to outweigh the constitutional harm, the court said. Tattered Cover v. City of Thornton, 44 P.3d 1044 (Colo. 2002).
Basing its ruling on the First Amendment and the free speech guarantees of the Colorado Constitution, the court affirmed “an individual’s fundamental right to purchase books anonymously, free from government interference.” The court held that search warrants targeting bookstore records represent such a serious threat to First Amendment rights that they should only be issued after the bookseller has had an opportunity to oppose them in an adversarial hearing before a magistrate, who must then apply a balancing test to determine whether the law enforcement needs outweigh the harm to constitutional interests.
The case stems from a March 2000 raid on a methamphetamine laboratory in which drug agents found two books and an invoice number from the Tattered Cover. In April, police officers turned up at the Tattered Cover with a search warrant seeking the purchaser’s name and a record of book purchases over a 30-day period. The Tattered Cover’s owner, Joyce Meskis, refused to comply and fought the search warrant in court. She appealed a lower court’s ruling to the Colorado Supreme Court.
Although the state constitution’s free speech guarantees apply only in Colorado, the ruling takes on added significance for the nation in light of the current furor over provisions of the USA Patriot Act discussed above, which allow the FBI to execute secret search warrants, obtained without having to show probable cause, to seize library circulation and bookstore purchase records.
--Judith F. Krug and Deborah Caldwell-Stone
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