Intelligence and Privacy

Access to Library and Business Records

The government has achieved much of its data gathering by demanding that retailers, libraries, schools, internet service providers, and others turn over client information. Section 215 of the USA PATRIOT Act requires libraries, bookstores and other venues to turn over business records, documents, and other items on demand if the FBI has declared that the items are being sought for an ongoing investigation related to international terrorism or clandestine intelligence activities. Many commercial establishments reportedly have turned over client information without objecting to the government's requests.

This invasion of privacy regarding personal information is exacerbated by provisions that keep secret the fact that the government has accessed this information. Section 215 of the USA PATRIOT Act makes it a crime to reveal that the FBI has seized customer records. This means, for example, that a librarian who speaks out about being forced to reveal a patron's book selections can be subject to prosecution.1 Even information on the general direction and scope of measures to seize consumer records has been suppressed. In July 2002, House Judiciary Committee Chairman James¹ Sensenbrenner (R-WI) requested information about whether Section 215 of the USA PATRIOT Act had been used to access library, bookstore or newspaper records and, if so, how many times. But the Justice Department refused to answer, saying that such information is classified.²

Librarians and booksellers have been outspoken about the potential these new measures have to chill freedom of expression and inquiry. In some parts of the United States, these groups have considered changing their record systems to limit the personal information they acquire from their clients. ³

The American Library Association (ALA) and other major library organizations have introduced new guidelines for dealing with federal warrants while discussing how to document intrusive measures without putting librarians in legal peril. In a December 11, 2002 consultation, these organizations, including the ALA, the American Association of Law Libraries, and the Special Libraries Association, recommended that "[l]ibrarians should document all investigative actions related to the USA PATRIOT Act."⁴

[T]he new provision can be used to obtain circulation records from libraries, purchase records from bookstores, academic records from universities, medical records from hospitals, or e-mail records from internet service providers. The government need not show probable cause or any individualized suspicion of criminal activity; rather, it need only assert that its request is "for an authorized investigation . . . to protect against international terrorism or clandestine intelligence activities.

To understand how the new law can result in a widespread invasion of privacy, it is instructive to examine what happened when the government became concerned that underwater diving skills might be used to perpetrate a terrorist attack. Based on this concern, the FBI attempted to acquire the records of everyone who had taken a scubadiving course with a dive shop or at the local YMCA. Instead of investigating particular individuals about whom the government might have suspicions, the FBI sought to collect personal information on all scuba diving students in order to spot potential wrongdoers. The operation, which may have produced personal details on millions of Americans, came to light when a small dive shop in California - Reef Seekers Dive Company - refused to turn over records on clients, "even when officials came back with a subpoena asking for 'any and all documents and other records relating to all noncertified divers and referrals from July 1, 1999, through July 16, 2002.'" ⁶ The subpoena was withdrawn when it was made clear that it would have to be defended in a court of law.^7,