Friday, January 06, 2006

Should you be afraid of the Patriot Act, Part IV?

Previously we have talked about FISA, the National Security Letters, and "sneak-a-peak". Today, let's consider Section 215 of the Patriot Act – the so called “library provision” or “angry librarian provision” depending on who you talk to.

In library school, we hashed through the common bun and shushing stereotype. Almost a decade later the image of librarians may be changing. In 2003, a frustrated FBI agent wrote in an e-mail:
"The inability of FBI investigators to use this seemingly effective tool has had a direct and clearly adverse impact on our terrorism cases. While radical militant librarians kick us around, true terrorists benefit from OIPR's failure to let us use the tools given to us."
There have been stories of agents using Section 215 in libraries, but the Department of Justice and FBI deny that Section 215 has been employed against libraries.

In response to the Patriot Act, many states created confidentiality laws to protect library and other types of records. For example, an excerpt from Maryland’s law as it relates to library circulation records:

Section 23-107. Circulation records.

(a) Inspection, use, or disclosure prohibited. -- Subject to the provisions of subsection (b) of this section, a free association, school, college or university library in this State shall prohibit inspection, use, or disclosure of any circulation record or other item, collection, or grouping of information about an individual that:
(1) Is maintained by a library;
(2) Contains an individual's name or the identifying number, symbol, or other identifying particular assigned to the individual; and
(3) Identifies the use a patron makes of that library's materials, services, or facilities.

Section 215 overrides state library confidentiality laws by permitting the FBI to compel production of business, medical, education, and library records without demonstrating probable cause. Prior to the USA Patriot Act amendments, the Act restricted the FBI’s purview to entities that contained travel information such as airline carriers, hotels, and vehicle rental facilities.

So, if an agent shows up on your doorstep demanding some circulation information or a computer, how will you know he or she is operating under 215? After all, the orders under Section 215 will not state their purpose and if served, the librarian can not disclose to any other person (other than those persons necessary to produce the information sought)that the FBI has sought or obtained information under the section. According to the ACLU, this is the form.

In June 2005, Congressman Sanders led a tri-partisan coalition to try to keep Government from accessing library records without a warrant.

I believe, however, that the Sanders amendment (passed June 2005) is largely symbolic for the following reasons:

1) This was tied to an annual appropriations bill, so it only applies for one fiscal year.

2) This only applies to the use of Section 501 of the FISA to obtain records, so it does not affect other procedures or authorities that the Department of Justice might use to obtain library records, such as a grand jury subpoena, or a warrant based on probable cause.

3) This will only affect records held by the library. Since library computers are usually connected to the Internet, the interested party would likely be able to access information from the library’s ISP. The Sanders amendment does not affect the DOJ's ability to go to the ISP for records and information.

For more on the legal analysis that can support this, read this article at the Tech Law Journal.


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