By Janis Siegel, JTNews Correspondent
Attorney General John Ashcroft has called it “baseless hysteria and simply ridiculous.” Despite his public remarks in September, booksellers and librarians across the country continue to question the constitutionality of the expanded powers granted to law enforcement in the USA PATRIOT Act.
The American Booksellers Association supports a suit filed by the American Civil Liberties Union, and the American Library Association has adopted a resolution to reject any infringement on the rights of library users.
“According to these breathless reports and baseless hysteria,” said Ashcroft in some remarks at a National Restaurant Association meeting in Washington, D.C., on Sept. 15, 2003, “some have convinced the American Library Association that under the bipartisan PATRIOT Act, the FBI is not fighting terrorism. “Instead, agents are checking out how far you’ve gotten on the latest Tom Clancy novel. Now you may have thought with all this hysteria and hyperbole, something had to be wrong. Do we at the Justice Department really care what you are reading? No.”
But First Amendment advocates say the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, otherwise known as the USA PATRIOT Act, goes too far by allowing Federal Bureau of Investigation agents access to the bookstore or library records of any individual they believe has information related to a terrorism investigation.
In Section 251 of the PATRIOT Act, the FBI can demand access to business, medical and educational records, including stored electronic data and communications. But the most worrisome, says the ABA Foundation for Free Expression, is the requirement in the law for secrecy.
“The worst thing about the PATRIOT Act is secrecy — our inability to know to what extent the government is using its power to obtain records,” said Chris Finan, president of the ABAFFE headquartered in New York.
The American Booksellers Association first established the ABAFFE to deal with First Amendment issues.
“There’s a gag order on papers served under the PATRIOT Act, so they’re not supposed to call us,” said Finan. “A judge can’t even inquire into the nature of the warrant.”
Ashcroft also objected to these accusations.
“The fact is that our laws are very particular,” said Ashcroft in his September remarks. “There are strict legal requirements…without meeting these legal requirements, obtaining business records, including library records, is not even an option.”
The ABAFFE offers their own in-house legal counsel to storeowners or their staffs who need advice about a request for information from authorities. They are available to ABA members by phone.
“This is a frightening thing for a bookseller to receive an order,” said Finan. “Bookstores should prepare for attacks on their customer’s privacy from a number of directions.”
There have been fewer than a dozen reported attempts to search or seize records, but not all of them have progressed beyond the subpoena stage, Finan said.
The ABAFFE has gotten involved in five high-profile cases, including locally with Amazon.com, the Tattered Cover bookstore in Denver, Colo., Kramer Books & Afterwords in the Monica Lewinsky case in 1998, and with a Borders Books in Kansas City, Mo.
All of the local libraries and bookstores the Transcript contacted either did not know enough about the PATRIOT Act and did not feel comfortable speaking about it, or had strong feelings about customer privacy and wanted to express their protest.
No library or bookstore contacted was in favor of the act.
Emily Freedman, owner of the Tree of Life Judaica & Books in Seattle is aware of the possibility that either she or her staff might be faced with a warrant to search her own store records.
“I would not give them information,” said Freedman. “For them to do that basically means that the terrorists have won. I don’t think the end justifies the means.”
Freedman keeps ABAFFE instructions nearby. They read as follows: “In case of a First Amendment emergency, if handed a subpoena or if you are presented with a search warrant tell law enforcement that ‘I need to talk to my attorney…The police do not have to let you contact your attorney. If they insist on searching right away you must or you can be arrested. Section 50 of USD 1861 of the Foreign Intelligence Surveillance Act says you must hand over documents.’”
“As a person, I do not gossip,” said Freedman. “I don’t talk about my customers with anybody. I never pass on information that I receive in the course of doing business so it violates my personal principles, not to speak of my business ethics.”
ABAFFE’s Finan offers different advice for business owners facing a request for records from law enforcement.
“Our advice to booksellers is that if the FBI is demanding records and they won’t let you contact counsel, we recommend that you turn them over,” said Finan. “A lot of booksellers feel very strongly on this issue, but if they were portrayed to their community as blocking a terrorism investigation, that would certainly hurt their business.”
In January 2003, the ALA, which is the oldest and largest library association in the world with more than 64,000 members, adopted a formal resolution concerning the USA PATRIOT Act.
“The American Library Association will take actions as appropriate to obtain and publicize information about the surveillance of libraries and library users by law enforcement agencies and to assess the impact on library users,” reads the resolution on the ABA Web site.
“The ALA considers that certain sections of the PATRIOT Act are a present danger to the constitutional rights and privacy rights of library users,” the resolution continues. “The library or its employees are entitled to ask the officer to allow them to consult with legal counsel and to ask that the library’s counsel be present for the search, but there is no opportunity or right to quash a search warrant.”
Charles Chamberlin, deputy director of libraries at the University of Washington in Seattle does not know of any requests by law enforcement for information or records in the university library system, but he says the university is formulating policies about the PATRIOT Act on an ongoing basis.
“The library values the privacy of library users,” said Chamberlin, “and every individual has the right to receive and review information without restriction. We have concerns that if a library can’t continue to provide the unimpeded flow of information then that’s a setback. The PATRIOT Act may encourage the frequency of requests.”
Chamberlin says the university has developed a set of guidelines employees should follow if they receive a request from law enforcement.
“If a library employee is approached,” said Chamberlin, “the employee is to work with the unit supervisor prior to responding. We’ve asked them to contact two individuals. We are to check with the [state] attorney general’s office to understand our responsibility and verify the legality of the request.”
When asked if the Jewish Archives at the University of Washington posed any more of security risk for abuse by potential terrorists, Chamberlin rejected the idea.
“Any library has material in it or has computers for which people can find information that has potential for abuse,” Chamberlin said. “To focus on one aspect of it, I think, is a mistake.”
Although the PATRIOT Act contains a sunset clause that will terminate most of its powers in 2005, Finan has already heard calls to extend the its expiration date. He is skeptical.
“It’s a problem that will continue to be with us for the foreseeable future,” Finan said.
He staunchly defends the Freedom Foundations’ position with cautionary tales taken from the lessons of history.
“Those who oppose the new provisions in the PATRIOT Act that allows the FBI full access to customer records do so with history on their side,” said Finan. “In the past the government has abused its power. The government has spied on Americans going back to the anti-war movement and the civil rights movement. If we can’t monitor what they’re doing there will be abuses.”