Issues concerning libraries and the law - with latitude to discuss any other interesting issues Note: Not legal advice - just a dangerous mix of thoughts and information. Brought to you by Mary Minow, J.D., A.M.L.S. [California, U.S.] and Peter Hirtle, M.A., M.L.S. Follow us on twitter @librarylaw
Answer: Although actual issued orders are under seal, the ACLU has posted the form used by the FBI to apply for Section 215 orders, the form letter that it uses to order disclosure, and related 215 and National Security Letter documents.
New! Procedural Rules of the Foreign Intelligence Surveillance Court Form letter used by FBI to order disclosure under Section 215 Form used by FBI to apply for Section 215 orders from FISA court Form Section 215 order proposed by FBI to FISA court FBI internal e-mail discussing scope of Section 215 Form used by FBI field offices to request Section 215 orders from FBI headquarters Memo delegating authority to approve Section 215 applications Memo indicating that FBI applied for a Section 215 order in October 2003 Memo for FBI field offices explaining Section 215 List of National Security Letters issued by FBI between October 26, 2001, and January 21, 2003
A patron wants to know if he used our wireless on our internet, would his computer then be subject to the same scrutiny under the Patriot Act as our library machines are? To expand this, can wireless interactions be tracked the same as in-library interactions?
Have any of you had to answer this question, or dealt with this issue in your library? Any ideas, articles, etc. would be helpful. I couldn't find much specifically on this issue.
Minow comment: This question embraces a combination of legal and technical issues. Legally, the Patriot Act and related measures do indeed make one's own laptop susceptible to a host of search, intercept, Sect 215, national security letters and other orders. I've written a chart, with the orders I'm aware of. I'd like to put the chart into a wiki so it's easy to update, but I haven't quite figured out how. Patriot Act Sect 215 applies to "any entity," not just libraries. In fact when it's labelled the "library provision" I am often curious as to why a multitude of others, particularly the press, haven't written about how it applies them as well. Then there's the question as to who actually receives the order, and what information that entity has. If a library serves as the ISP and gets an intercept or pen trap order, what information does it actually have on its wireless users? Do libraries install keyloggers to trap every keystroke?
As an aside, I know that if I go to an Internet cafe, someone can spoof the SSID and route all my keystrokes through their computer on the way to the net, with me none the wiser. I also recently read that someone can audiotape my keystrokes and figure out with a high degree of certainty what my keystrokes have been.
If you're someone who works with wireless services in libraries - please weigh in as to what user information your library sees.
If you follow the FBI and libraries issue, no doubt by now you know a federal court in Connecticut ordered the Department of Justice to allow "Doe" (the library entity challenging a national security letter for patron records) to reveal its identity.
That order is stayed until September 20, 2005 to give an opportunity for an appeal.
The ACLU is asking folks to sign a petition asking Attorney General Gonzales to lift the gag.
Minow take: There are times when it's appropriate to gag a recipient of a National Security Letter - e.g. if it could tip off a terrorist suspect that s/he's being watched. Even seemingly innocuous pieces of information, when pieced together with other information can tip off terrorists as to the focus of ongoing counterintelligence (i.e. "a mosaic.")
There was not enough evidence in this case, however, to even make a viable mosaic argument, according to the court. Of course, I didn't see the classified material to come to that conclusion, but the federal court did. It ruled that revealing Doe's identity will not harm the investigation.
Doe's First Amendment rights, on the other hand, are harmed by the gag. The law, (18 U.S.C. 2709(c)) is overbroad, going so far as to prohibit recipients like Doe from ever disclosing its identity, even after the case is closed in the distant future.
As the Court wrote, "Considering the current national interest in and the important issues surrounding the debate on renewal of the PATRIOT Act provisions, it is apparent to this court that the loss of Doe’s ability to speak out now on the subject as a NSL recipient is a real and present loss of its First Amendment right to free speech that cannot be remedied. Doe’s speech would be made more powerful by its ability to put a “face” on the service of the NSL, and Doe’s political expression is restricted without that ability. Doe’s right to identify itself is a First Amendment freedom independent from Doe’s right to speak generally about its views on NSLs. Doe’s statements as a known recipient of a NSL would have a different impact on the public debate than the same statements by a speaker who is not identified as a recipient."
p.s. Raizel and I are working on updating my Post-Patriot orders chart - at least the National Security Letters and Section 215 sections - since so many people get them confused. We'll add court challenges, key govt and librarian claims etc. We want to make it into a wiki - Does anyone know how to easily put a chart into a wiki - or even maybe wanna give us a hand setting up the wiki?
I believe it is quite possible that the organization was not a library, but a library-related service, such as an internet service provider or other vendor.
The lawsuit itself is under a seal, forbidding release of identifying information. Interestingly, neither the press release nor the redacted lawsuit filing specifically states that library records have been obtainedby the FBI -- only that this member of the American Library Association was
"hereby directed to provide to the Federal Bureau of Investigation (FBI) any and all subscriber information, billing information, and access logs of any person or entity relating to the following: [redacted]"
What difference does this make? The movement protesting the use of the Patriot Act in libraries has focused on confronting the FBI and Justice Department regarding library records from libraries. If the Justice Department has been disingenuous regarding statements that they are not interested in the library records of Americans as the ACLU is asserting, then the library community's protests need to be wider in scope. Unfortunately, due to the redacted complaint, it is impossible to know the scope of information being sought by the FBI.
This post is from David Dodd, California Library Association (CLA) Intellectual Freedom chair...
August 29, 2005
Dear CLA Member,
A newly unsealed federal lawsuit confirms the FBI has used controversial Patriot Act powers to demand records from an organization that possesses a wide array of sensitive information about library patrons, including information about Internet usage and reading materials borrowed by library patrons.
The American Civil Liberties Union is seeking an emergency court order to lift a heavy FBI gag order on the lawsuit, so that its client--an ALA member--can participate in the public debate. That debate will heat up in days, as Congress prepares to reauthorize or amend the Patriot Act in September.
Because of the importance of this issue to libraries and their patrons, the Intellectual Freedom Committee of the California Library Association is partnering with the ACLU to encourage all CLA members to host a public event about the Patriot Act. We are making immediately available to all member libraries a DVD copy of Beyond the Patriot Act, the first episode of The ACLU Freedom Files, a new TV series from producer Robert Greenwald (Unconstitutional, Outfoxed).
Beyond the Patriot Act is 30-minute program designed to reveal how civil liberties affect real people everyday. It features stirring accounts of current cases, as well as well-known actors, activists and comedians. All the necessary resources for a succesful event--publicity tools, invitations, event agendas, Patriot Act talking points--are also available.
If you schedule your event on Thursday September 8, you and your patrons can join in an 8:30 p.m. national conference call with Anthony Romero, Executive Director of the ACLU, to learn the most up-to-date news about this important new lawsuit and the status of Patriot Act legislation. The call will take place after the satellite TV premiere of Beyond the Patriot Act.
To participate in this national happening, and order your DVD contact the ACLU's distribution partner at FreedomFiles@activevoice.net, or call (415) 553-2841.
Help protect the First Amendment and our American tradition of intellectual freedom.
David Dodd Chair, Intellectual Freedom Committee California Library Association
On the one hand, the ACLU library records lawsuit against Alberto Gonzales is making big news (NYT et al). It claims that the National Security Letter expansions in the PATRIOT Act allow the FBI to get copies of all the email sent, websites visited etc. on library computers without enough safeguards.
On the other hand, the ALA just released the full report of what was supposed to be its study on libraries and the PATRIOT Act. However,the study is flawed in that it did not ask respondents to identify the types of requests they had received - we do not know how many received NSL requests, Sect. 215 requests, grand jury subpoenas, etc. At the ALA conference, ALA officials said it was too risky to even ask the libraries to report. Impact and Analysis of Law Enforcement Activity in Academic and Public Libraries August 25, 2005
I saw Supriya Wronkiewicz this weekend, and she told me she had recently written a paper for San Jose State library school titled, The USA PATRIOT Act: What Librarians Should Know to Protect the Privacy and Confidentiality of Their Patrons - available here. If other students have papers on library law issues - let me know and I'll point to them.
While I'm here, in case you haven't seen it, Charles Doyle updated his CRS Report, Libraries and the USA PATRIOT ACT on July 6, 2005, and has written two very helpful summaries on the dueling versions by the House and the Senate to reauthorize the expiring provisions. Go to opencrs.com and search on "Patriot Act"
Sanders Passes Critical Legislation to Amend Patriot Act and Protect Americans’ Reading Records
Washington, DC—Congressman Sanders today led a tri-partisan coalition in restoring Americans’ constitutionally guaranteed right to read and access information without governmental intrusion or monitoring. With 199 Democrats, 38 Republicans and one Independent (Sanders) voting in support, the House passed Congressman Sanders legislation to amend Section 215 of the Patriot Act in order to keep the federal government from accessing Americans’ reading records without a traditional search warrant.
Can someone tell me how many are needed to stop a presidential veto?
According to the Campaign for Reader Privacy, next week Rep. Bernie Sanders (I-VT) will try again to pass his Freedom to Read Amendment, when the House of Representatives is due to consider the House Commerce, Justice, State (CJS) Appropriations Bill, which funds the Justice Department. The Sanders amendment would cut off funds for bookstore and library searches under Section 215 of the USA PATRIOT Act. This last time the Freedom to Read Act Amendment was introduced, it was defeated in a tie vote. The Amendment to the Justice Department's funding bill was originally 219-200 in favor of the amendment, but the the House leadership changed enough votes to bring the tally to a 210-210 tie. The vote was close last time, so this is the time to send a letter or e-mail to your representative.