Provisions in the so-called "Patriot" Act allowing federal agents to obtain library and bookshop records without a search warrant should be allowed to sunset at the end of this year as scheduled, American Library Association (ALA) President Carol Brey-Casiano said during a Washington press conference earlier this week. It has always been possible to obtain search warrants for this type of information, so long as a judge can be persuaded that a crime has likely been committed or a conspiracy is likely to be in the works, she explained.
"The government does not need the additional powers allowed it under Section 215 of the Act," she said.
Section 215 granted federal LEAs authority to demand information without a judge's approval, and imposed a gag order prohibiting trustees of the data from informing the target of the search, or informing any other person not involved in satisfying the demand. Although most businesses are subject to it, the provision came to be known popularly as the 'library provision,' due in part to strenuous ALA objections to divulging the reading and research habits and potential thought crimes of library patrons.
The 'library provision' is among fifteen controversial items originally scheduled to sunset in January unless Congress approves their renewal, as it appears poised to do. The Bush Administration has been fanatical about renewing each of them, insisting that they have effectively prevented further terrorist atrocities, although no evidence has been produced to back up these claims.
Library confidentiality and the burden of convincing a judge to open records of patrons' reading and Web surfing habits constitute a terrible risk, the Administration believes. During hearings on Capitol Hill last week, US Attorney for the District of Columbia Kenneth Wainstein made certain to reveal that two 9/11 hijackers had used library computers to buy airline tickets via the internet.
House Judiciary Committee Chairman James Sensenbrenner (Republican, Wisconsin) pounced on the tidbit, claiming that Wainstein's "newly released information demonstrates the critical importance of Section 215...to help disrupt and prevent future terrorist attacks."
The National Review obediently accommodated the Chicken Little chorus by running an alarmist column entitled "On Borrowed Time," elaborating numerous connections between terrorism and library use, and predicting doom if federal LEAs are not permitted to "remain vigilant in the stacks." Other known terrorists had visited libraries too, readers of this FUD masterpiece will be shocked to learn.
Meanwhile, the ALA has met with US Attorney General and former White House torture apologist Alberto Gonzales in hopes of amending the provision so that at least library patrons can feel secure that their choice of reading materials and preferred Web sites won't become part of their secret, permanent records so easily.
Gonzales has said that he would consider an amendment allowing data trustees (e.g., librarians) served with subpoenas to contact a lawyer before fulfilling its demands. This would not give any rights to targets of the searches, or lift the gag order, however. And since it's more or less customary for agents to allow people served with subpoenas to contact a lawyer to advise them, Gonzales is offering something that's already pretty well established. But at least it would be a recognized privilege, not a courtesy subject to interpretation, which is an improvement over current practice, ALA Washington office Executive Director Emily Sheketoff told The Register.
ALA's meeting with Gonzales was reportedly cordial and serious, and Sheketoff says that he seemed both attentive and willing to make a good faith effort to address the ALA's concerns. However, being attentive can sometimes mean little more than devising a more targeted and legally-rationalized refusal to budge, and Sheketoff did not express much optimism that Gonzales would yield on any of the basic provisions of Section 215.
Nevertheless, there is a small bright point on the horizon, in the form of the SAFE Act, a bill introduced by US Senators Larry Craig (Republican, Idaho) and Dick Durbin (Democrat, Illinois), which seeks to undo some of the more objectionable features of the "Patriot" Act.
The bill has good bipartisan support on the Hill and is enjoying a boost from lobbying by the ALA, ACLU, and numerous other outfits. So, while the "Patriot" Act looks set to have its permanent Gestapo provisions kept nearly intact, and its purportedly temporary ones renewed with only cosmetic modifications, there is always the possibility that the Safe Act could make it moot. Assuming, that is, that Congress can override the inevitable White House veto - hardly a bet that we would make. No wonder the Administration shows so little inclination to compromise on the "Patriot" Act in exchange for ditching the Safe Act.