What does the chair of the President's Board on Safeguarding Americans' Civil Liberties REALLY think about librarians?

You may have read that Deputy Attorney General James Comey is chairing the new President's Board on Safeguarding Americans’ Civil Liberties.  What does this mean for libraries?

Well, here's what James Comey said about librarians in an address before the American Law Institute last May:

I think librarians do tremendous good in this world, and I'm not saying that just because the First Lady is a librarian, but I do believe that it is a shame that the debate with people who care so much about public policy, as I believe librarians do, has been so ill-informed.

Mary: I believe, by and large, that librarians are better informed than most folks, and take issue with a number of his points. Here are some short excerpts by Comey, followed by my thoughts.

Let me start with libraries.  There is no mention of libraries in the Patriot Act. That surprises most people.

Mary: That's true.  The Act does not single out libraries and bookstores, but applies to any entity - that means your Internet Service Provider is also at risk (i.e. all your emails, web surfing), as well as your news media outlets, fishing stores etc. etc. This is a dramatic change from the previous law which only covered business records at a few types of businesses such as common carriers.

Libraries and bookstores thought through the implications of Section 215, (codified here) which says it applies to any tangible thing  (including books, records, papers, documents, and other items) and realized that readers' records are at risk. When reading records are subject to disclosure (without at least an articulable suspicion that an individual is a criminal or terrorist), there is a great chilling effect. For example, a librarian told me a nine year old boy wanted to check out a book on airplanes, and his father was too scared to let him check it out. Irrational? Not really -- the FBI only has to make a relevance showing that a user database wanted for an investigation into terrorism.  There are no reassurances that the library can offer to innocent users whose records are part of the database.

No other crimes than international terrorism or foreign counterintelligence, and the Act says specifically that the investigation cannot be predicated upon First Amendment activities alone.

Mary: The First Amendment exclusion is good, but does not go far enough for libraries. It only applies to U.S. persons and libraries do not code their readers by citizenship status. In the example above, the boy appeared to be of Middle East descent. His citizenship? Librarians do not track or even ask. Even for U.S. persons, there is no meaningful oversight, since these databases are shared by all users, the judicial proceedings are closed and the records are sealed.  Congressional oversight, as far as I can tell, is limited to a numerical count of the times the provision is used.

Before the Patriot Act and still without using this Act, I'm here to tell you as a career prosecutor it was much easier to get those records by going to an Assistant U.S. Attorney, because that Assistant U.S. Attorney could cut a subpoena for an FBI agent with no judge involved, no showing of any kind, simply a stack of preprinted forms.  Those grand-jury subpoenas were used, for example, in the Ted Kaczynski Unabomber case where Kaczynski, rememer, in his whacko manuscript, had referred to some obscure texts, and the FBI, in an effort to tie him to the manuscripts, had subpoenaed library records to see if he had checked out, as he had, those obscure texts.  It has been used in a number of other critical investigations.

Mary: A couple of points: subpoenas target actual suspects. Section 215 has no such requirements, and its authorization extends to general terrorism investigations that could readily tap an entire user database.  Further, although subpoenas may be issued without judge approval, they are subject to challenge in front of a judge using the adversarial system, as opposed to a one-sided argument to the FISA court.

Now it is flattering, I suppose, to the government, that folks would think we have the resources to follow people's reading habits, but if someone is indeed reading about how to build a dirty bomb and planning to build one and someone tells us that, I think we are duty bound to check that out.  I don't think that even folks who have been very excited about this issue, when they take the time to think about it, really want libraries to be some sort of sanctuary for criminal behavior. 

Mary: If there is evidence that someone is planning to build a dirty bomb, then get the court order, and libraries will certainly comply.  This must be analyzed differently than when someone is merely reading about the topic, which is not criminal behavior.

...we discovered that this library system, in a major American city, had installed software in the wake of the Patriot Act that scrubbed the hard drive after each user ... What are we doing that we've come to a point where we are creating sanctuaries like that?

Mary: It's ironic that libraries have stepped up their efforts to erase user tracks. If there was greater faith in the legal safeguards (say, pre-Patriot Act standards)this might not have happened.

One of the things that upsets people, though, in particular about this provision, is one thing I haven't mentioned yet, and that is that this new provision of the Patriot Act carries with the court order a gag on the library...Should they have tipped Ted Kaczynski?

Mary: I don't know of any librarian who wants to tip off a targeted suspect. The concern is the scope and infinite duration - even after an investigation is over, librarians cannot share their experiences with colleagues who may wish to learn how to comply with these orders. When I asked an ALA attorney how many inquiries she'd had on 215 orders, she told me she couldn't even tell me the number. Yes, this level of secrecy and fear is upsetting.

Read on for the full excerpt by James B. Comey.

ADDRESS by the Honorable James B. Comey, Deputy Attorney General of the United States - the Wednesday luncheon session of the American Law Institute convened in the State Room of The Mayflower, Washington D.C. on May 19, 2004. President Michael Traynor presided. [Note: if someone finds this on the web, send in the link. I typed in this excerpt from a hard copy of the proceedings]

... Let me start with libraries.  There is no mention of libraries in the Patriot Act. That surprises most people.  What the Act allows is for FBI agents conduction international terrorism investigations or foreign counterintelligence investigations to go to a federal judge sitting on the FISA court, the Foreign Intelligence Surveillance Court, and, based on a written showing, obtain a court order allowing the production of records that are business records, either perhaps from a credit-card company, car-rental place, hotel place, or theoretically, I suppose, a library.  No other crimes than international terrorism or foreign counterintelligence, and the Act says specifically that the investigation cannot be predicated upon First Amendment activities alone.

Before the Patriot Act and still without using this Act, I'm here to tell you as a career prosecutor it was much easier to get those records by going to an Assistant U.S. Attorney, because that Assistant U.S. Attorney could cut a subpoena for an FBI agent with no judge involved, no showing of any kind, simply a stack of preprinted forms.  Those grand-jury subpoenas were used, for example, in the Ted Kaczynski Unabomber case where Kaczynski, rememer, in his whacko manuscript, had referred to some obscure texts, and the FBI, in an effort to tie him to the manuscripts, had subpoenaed library records to see if he had checked out, as he had, those obscure texts.  It has been used in a number of other critical investigations.

This part of the Patriot Act, as of September of 2003, had never been used.  The number that we declassified was zero, and that may be because it was so much easier before the Patriot Act than after the Patriot Act to obtain those same records through ordinary criminal process.

Now it is flattering, I suppose, to the government, that folks would think we have the resources to follow people's reading habits, but if someone is indeed reading about how to build a dirty bomb and planning to build one and someone tells us that, I think we are duty bound to check that out.  I don't think that even folks who have been very excited about this issue, when they take the time to think about it, really want libraries to be some sort of sanctuary for criminal behavior.  Librarians don't really want that; nobody wants that.  Nobody wants it to become an island where, especially because of the presence of computers, criminals or terrorists, Heaven forbid, can use those facilities without fear of law enforcement, and I encountered a situation not long ago that caused me a great concern in that regard.

We were tracking someone in a terrorism case who, although he had a computer at home, kept going to a library.  We couldn't figure out what was the reason for that until we discovered that this library system, in a major American city, had installed software in the wake of the Patriot Act that scrubbed the hard drive after each user, scrubbed it in a way that we could not reconstruct it, very professional scrubbing software, and this person knew that and so was using the computer, sending e-mails from that facility, knowing that he could do it without us knowing about it, without fear of being caught.  When I heard that, my reaction was, what are we doing? What are we doing that we've come to a point where we are creating sanctuaries like that?

One of the things that upsets people, though, in particular about this provision, is one thing I haven't mentioned yet, and that is that this new provision of the Patriot Act carries with the court order a gag on the library, or more often the rental-car place or the credit-card place, that they cannot tell that they received this request.  That has caused a great deal of concern, and I suppose it's worthy of debate, but the question I ask libraries is, should libraries, or credit-card places, or rental-car places, really be the people to decide whether to tell someone that the FBI is conducting a foreign counterintelligence investigation or a foreign terrorist investigation? Should they have tipped Ted Kaczynski?

My argument in response goes like this.  A person really committed to privacy does not want the FBI telling third parties what they are investigating, doesn't want the FBI going into a motel and saying, "We're here because we're investigating John Smith down the street, who we think might be hooked up with Al Qaeda, so we are serving you with this order for these records."

So people committed to privacy would not want those entities to know those facts, and, if they don't know those facts, how is it that they should be in a position to make the call about whether to disclose it?

I think librarians do tremendous good in this world, and I'm not saying that just because the First Lady is a librarian, but I do believe that it is a shame that the debate with people who care so much about public policy, as I believe librarians do, has been so ill-informed. ...

Comments

[TruthInAdvertising]

Interesting response Darius - Mary provides a thoughtful and thorough response to Mr. Comey's comments about libraries and the Patroit Act. Your response? A childish tirade straight from the latest Free Republic talking points where you attack ALA and librarians. Did you bother to even respond to Mary's comments? Nope because you were only here on one mission - to trash your fellow librarians - not to provide any useful commentary.

[Darius Ritchie]

What does "informed" mean in this context?

The library profession as represented by the ALA and many individual librarians simply tows the Michael Moore line on civil liberties issues. No thinking person would refer to Michael Moore as "informed."

The library profession is led by a hard-left/socialist cabal at the ALA. Witness Ann Sparanese and Mark Rosensweig as only two glaring examples.

The leftist clowns at ALA make the whole profession seem like some sort of temper-tantrum throwing pre-k crowd. Embarrassing, and what a shame.

Darius Ritchie, Public Librarian

[TruthInAdvertising]

One wonders if Norma would have told Rosa Parks to "stay in the back of the bus and keep your mouth shut"?

[Norma]

Librarians may be well informed, but their professional organizations and representatives are completely lop-sided (to the left) on any issue relating to the Bush administration, and that includes the PA. They are tainted on this issue, making their valuable input seem like temper tantrums. They laid the ground work with fighting filters to protect children, battling patrons over objectionable books, and now have moved on to throwing up barriers to protection from terrorists.