USA Patriot Act &

Intellectual Freedom

Carrie Lybecker
Liza Rognas
Carlos Diaz

The Evergreen State College

February 28, 2003

1
Patriot History
September 11, 2001
September 12 Ashcroft instructed staff to
draft broad authorities
Civil libertarians gathered the wagons
September 13 Senate precursor bill adopted
September 19 Congressional, White House
and Justice leaders exchanged proposals
Patriot enacted October 26, 2001
2
Immediate Opposition
ACLU, Electronic Privacy Information
Center, Center for Democracy and
Technology, American Association of Law
Libraries, the American Library
Association, Association of Research
Libraries, Amnesty International, Human
Rights Watch, Physicians for Human
Rights, Women's International League for
Peace and Freedom
3
USA Patriot Act
Uniting and Strengthening America by
Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Act of
2001
Public Law 107-56
H.R. 3162

4
Patriot Summary
 Circumvents 4th Amendment probable cause
requirement and protections of privacy
 Vastly increases surveillance and search and
seizure powers
 Allows extensive information sharing among
agencies
 Minimizes or eliminates judicial and
congressional oversight and accountability
 Increases government secrecy

5
Intellectual Freedom: A
Library Value
Intellectual freedom is the right of every
individual to both seek and receive
information from all points of view without
restriction. It provides for free access to all
expressions of ideas through which any and
all sides of a question, cause or movement
may be explored.—American Library Association,
Office for Intellectual Freedom

6
Intellectual Freedom: A
Library Value
Intellectual freedom is the basis for our
democratic system. We expect our people to
be self-governors. But to do so responsibly,
our citizenry must be well-informed.
Libraries provide the ideas and information,
in a variety of formats, to allow people to
inform themselves.—American Library Association,
Office for Intellectual Freedom

7
Privacy: A Library Value
The right to privacy is the right to open
inquiry without having the subject of one’s
interest examined or scrutinized by others
Privacy is essential to the exercise of free
speech, free thought, and free association,
and

8
Privacy: A Library Value
Protecting user privacy and confidentiality
has long been an integral part of the mission
of libraries.—Privacy: An Interpretation of the
Library Bill of Rights, American Library
Association

9
Historical Precedents:
Libraries
1939 Library Bill of Rights
1947 HUAC accused LOC of harboring
aliens
1948 ALA opposed loyalty oaths
1953 McCarthy attacked overseas library
collections, books burned
1953 ALA Freedom to Read

10
Library Awareness
Program 1960s-1980s
FBI infiltrated libraries across nation and
attempted to enlist librarians in the
surveillance and reporting of the library
activities of foreigners, including divulging
their names, reading habits, materials
checked out, and their questions to
reference librarians.

11
Library Awareness
Program 1960s-1980s
“The agents told librarians that they should
report to the FBI anyone with a ‘foreign
sounding name or foreign sounding
accent.’”—Librarian Herbert Foerstel (University of
Maryland, author of Surveillance in the Stacks: The FBI's
Library Awareness Program)

12
Library Awareness
Program 1960s-1980s
“Jaia Barrett of the Association of Research
Libraries wondered: ‘What’s the next step?
Classifying road maps because they show
where bridges are for terrorists to blow
up?’”—Natalie Robbins, “The FBI’s Invasion of
Libraries,” The Nation April 09, 1988

13
History 1970s
Treasury visited libraries demanding patron
records
ALA published “Policy on Confidentiality
of Library Records” and “Policy on
Government Intimidation”

14
History 1970s
ALA denounced government use of
informers, electronic surveillance, grand
juries, indictments, and spying in libraries,
asserting “no librarian would lend himself
to a role as informant, whether of
voluntarily revealing circulation records or
identifying patrons and their reading habits”

15
Intellectual Freedom: A
Basic Human Right
Everyone has the right to freedom of
opinion and expression; this right includes
freedom to hold opinions without
interference and to seek, receive and impart
information and ideas through any media
and regardless of frontiers.—Article 19, Universal
Declaration of Human Rights

16
Intellectual Freedom: A
Civil Right
First Amendment: religion, speech, press,
petition, assembly
Fourth Amendment: privacy, probable
cause
Fifth Amendment: due process of law

17
Fourth Amendment
The right of the people to be secure in
their persons, houses, papers, and effects,
against unreasonable searches and
seizures, shall not be violated, and no
Warrants shall issue, but upon probable
cause, supported by Oath or affirmation,
and particularly describing the place to be
searched, and the persons or things to be
seized
18
Probable Cause
A reasonable ground to suspect that a
person has committed or is committing a
crime or that a place contains specific items
connected with a crime; the facts must be
such as would warrant a belief by a
reasonable man
Major distinction between criminal and
intelligence investigations
19
Criminal vs. Intelligence
Investigations
Criminal investigations must adhere to
constitutional requirements regarding
privacy, probable cause, and due process
Intelligence gathering relied on lesser
standards, i.e. did not require probable
cause, as information sought was for
intelligence purposes only, not for use in
criminal investigations
20
Criminal & Intelligence
Investigations
Patriot blurs or eliminates the distinction
between the two, allows gathering of
evidence for criminal investigations through
the secretive intelligence process which
does not require probable cause as it was
intended to gather data about foreign agents

21
History: 1950s-1970s
FBI maintained campaign of surveillance,
disinformation, and disruption targeting Dr.
Martin Luther King, Jr., Amnesty
International, ACLU, antiwar and women’s
rights groups; and at the
University of California, the Free Speech
Movement, students, professors, and
administrators at UC Berkeley.
22
History: 1950s-1970s
CIA, by law restricted to intelligence
activities outside US and excluding US
persons, illegally spied on 7,000
Americans, sharing information with FBI
FBI initiated files on over 1 million
Americans, without a single resulting
conviction

23
History: 1970s
Senate Church Committee, 1975-1976,
documented FBI and CIA abuses in 13
published volumes
Enacted FISA, the Foreign Intelligence
Surveillance Act of 1978 to safeguard
constitutional rights

24
FISA Purpose
Define FBI domestic surveillance activities
relative to collection of foreign intelligence
information
Provide judicial and congressional
oversight
Prevent political spying and infringement
on constitutional rights

25
FISA Prior to Patriot
 Seven member secret court appointed by Supreme
Court to approve applications for intelligence-
gathering
 Operates in secret, proceedings are secret,
surveillance is secret, results are secret
 FBI was required to attest (without probable
cause) that the “primary purpose” of the
investigation was collection of foreign intelligence
information
26
FISA Prior to Patriot
Court’s role was largely to verify that
required documents had been submitted and
were in order
In 20+ year history, court denied one out of
more than 10,000 requests

27
FISA Prior to Patriot
FBI required to identify location, devices,
information sought, means of acquisition,
duration
FBI prohibited from sharing acquired
information with other law enforcement
agencies unless approved by Attorney
General (the “wall”)
Surveilled person not notified

28
FISA After Patriot
Patriot vastly broadens who may be
surveilled, in what manner, and what
information may be collected
Allows or mandates information sharing
among agencies
Decreases congressional and judicial
oversight

29
Patriot & Libraries
Section 203 Information Sharing
Section 206 Roving Wiretaps
Section 213 Sneak & Peek
Section 214 Pen/Trap-FISA
Section 215 Records
Section 216 Pen/Trap-Criminal
Section 218 Foreign Intelligence Info
30
Section 214: Pen/Trap
(FISA)
Section 214 pertains to electronic
surveillance, Pen/Trap acquisition of
electronic information in intelligence
investigations

31
Section 214: Pen/Trap
A pen register is a device that captures
phone numbers dialed, Internet addressing
information such as email addresses, URLs
accessed, search strings initiated
A trap and trace device identifies the origin
of incoming phone calls or email (electronic
signaling)

32
Section 214: Pen/Trap
(FISA)
Previously, government required to certify
that it had reason to believe that the
surveillance was being conducted on a line
or device used by someone or a foreign
power or agent involved with international
terrorism or intelligence activities that
violate US criminal laws

33
Section 214: Pen/Trap
(FISA)
Now, need only assert that the information
likely to be obtained is either foreign
intelligence information about a non US
person, or relevant to an ongoing
investigation to collect foreign intelligence
information or to “protect against
international terrorism or clandestine
intelligence activities,”
34
Section 214: Pen/Trap
(FISA)
“provided that such investigation of a
United States person is not conducted solely
upon the basis of activities protected by the
first amendment to the Constitution”

35
Section 203a: Foreign
Intelligence Information
Information concerning a US person, that
relates to the ability of the United States to
protect against attack, grave hostile acts,
sabotage, international terrorism, or
clandestine intelligence activities by a
foreign power or its agent; or

36
Section 203a: Foreign
Intelligence Information
information, whether or not concerning a
United States person, with respect to a
foreign power or territory that relates to the
national defense or the security of the
United States, or the conduct of the
foreign affairs of the United States."

37
Foreign Power:
“Foreign power” includes:
Foreign governments
Entity controlled by foreign government
A foreign-based political organization,
not substantially composed of United
States persons (50USC1801)
Examples: Amnesty International,
International Red Cross, CISPES
38
Section 214: Pen/Trap
(FISA)
International terrorism includes activities
that “appear to be intended …to intimidate
or coerce a civilian population” or “to
influence the policy of a government by
intimidation or coercion”

39
Section 203
Information Sharing
 Any investigative or law enforcement officer, or
attorney for the Government who has obtained
knowledge of the contents of any wire, oral, or
electronic communication, or evidence derived
therefrom, may disclose such contents to any other
Federal law enforcement, intelligence, protective,
immigration, national defense, or national security
official to the extent that such contents include
foreign intelligence or counterintelligence
information

40
Section 214: Pen/Trap
(FISA)
The person/entity surveilled need not be
suspected of terrorism or any crime
The specific person or communications
device or network need not be specified
The order includes a gag clause: the person
served may not disclose its existence

41
Section 218: Foreign
Intelligence
Previously required to assert that “the
purpose” of the surveillance is to obtain
foreign intelligence information
Revised to: “a significant purpose” of the
surveillance is to obtain foreign intelligence
information

42
FISC Opinion
In August 2002, FISC took the
unprecedented step of releasing, for the first
time in its history, an opinion regarding the
conduct of the Justice Department

43
FISC Opinion
Attorney General asserted that FISA may
“be used primarily for a law enforcement
purpose,” and
Proposed rules that would allow criminal
prosecutors to direct and control
intelligence investigations, that is, to use the
secret FISA process to collect evidence for
criminal cases
44
FISC Opinion
“This may be because the government is
unable to meet the substantive
requirements” of law applicable to criminal
investigation, and

45
FISC Opinion
“Means that criminal prosecutors will tell
the FBI when to use FISA (perhaps when
they lack probable cause), what techniques
to use, what information to look for, what
information to keep as evidence and when
use of FISA can cease because there is
enough evidence to arrest and prosecute”

46
FISC Opinion
Court revealed its 2000 discovery that FBI
had lied in 75 FISA surveillance
applications and was illegally mixing
intelligence and criminal investigations
In March 2001, government reported
similar misstatements in another series of
FISA applications

47
FISC Opinion
The Court found that most of the FBI’s
illegal activities violating court orders
involved information sharing and
unauthorized disseminations to criminal
investigators and prosecutors. How
misrepresentations on surveillance
applications occurred remained unexplained
to the Court, almost two years after they
were first discovered.
48
FISC Opinion
The court ruled against Ashcroft and
ordered the DOJ to retain separation
between criminal and intelligence
investigations
The DOJ appealed to the FISA Court of
Review (FISCR)

49
FISCR Opinion
The FISCR convened for the first time and
issued an opinion reversing FISC decision,
citing Patriot’s Sec. 218 language change
from “the purpose” to “a significant
purpose,” and also citing the explicit
support for that language by several
Senators during Patriot deliberations
[Democrats Leahy, Edwards, and Feinstein]
50
Result
The FISA process for approving electronic
surveillance as well as search and seizure
may be used, without probable cause, to
obtain evidence for criminal prosecution
For FISCR decisions, there apparently is no
recourse to the US Supreme Court

51
Electronic Surveillance:
Carnivore
Carnivore is a system of software and
hardware that captures electronic
communications over a network

52
Carnivore
Its existence was discovered in April 2000
when ISP Earthlink testified before the
House Judiciary Committee that the FBI
was requiring it to install Carnivore on its
network
Congress held hearings and exchanged a
series of letters with the FBI

53
Carnivore
DOJ commissioned a study by IIT Research
Institute and the Illinois Institute of
Technology Chicago-Kent College of Law

54
Carnivore
May be used in either “pen” mode, which
records To and From email address and IP
addresses, or “full” mode which captures
the full content of communications, i.e. e-
mail messages, HTTP pages (web browsing
contents) , FTP sessions, commands and
data, for instance, search strings initiated

55
Carnivore
Switching between modes requires one
mouse click to select a radio button
Operator not identified and actions are not
traceable
Program does not maintain a record of its
own activities
“It is impossible to trace the actions to
specific individuals”

56
Carnivore
Carnivore can perform fine-tuned
(“surgical”) searches
It is also capable of broad sweeps.
“Incorrectly configured, Carnivore can
record any traffic it monitors”
This is a recently declassified FBI
schematic depiction of Carnivore:

57
Carnivore

FBI

58
Carnivore

IIT Research Institute

59
Section 216 & Carnivore
Court authorizes installation of pen/trap
devices anywhere in US whenever an
attorney for government, or a State
investigative or law enforcement officer
certifies to court that that the information
likely to be obtained by such installation
and use is relevant to an ongoing criminal
investigation
60
Section 216 & Carnivore
Pen/trap orders nationwide: may now be
authorized by courts located outside the
communication provider’s geographic area,
and the order needn’t specify a geographic
area
Providers do not need to be specified

61
Section 216 & Carnivore
Gag clause: the person owning or leasing
the line to which the pen/trap device is
attached, or who has been ordered by the
court to provide assistance to the applicant,
[shall] not disclose the existence of the
pen/trap or the existence of the
investigation to the listed subscriber, or to
any other person, unless or until otherwise
ordered by the court
62
Section 206: Roving
Wiretaps
 Previously, court order had to identify the specific
service, e.g. an ISP or phone company, through
which surveillance would occur
 Sec 206 allows the interception of any
communications made to or by an intelligence
target without specifying the particular telephone
line, computer or other facility to be monitored

63
Section 206: Roving
Wiretaps
Includes gag clause—recipient of order
prohibited from disclosure

64
Section 206: Roving
Wiretaps
 EPIC analysis: “Could have a significant impact
on the privacy rights of large numbers of innocent
users, particularly those who access the Internet
through public facilities such as libraries,
university computer labs and cybercafes. Upon the
suspicion that an intelligence target might use
such a facility, the FBI can now monitor all
communications transmitted at the facility.”

65
Section 213: Sneak & Peek
“Authority for Delaying Notice of the
Execution of a Warrant”
Eliminates prior requirement to provide a
person subject to a search warrant or order
with notice of the search
With warrant or court order, may search for
and seize any tangible property or
communication, without prior notice

66
Section 215: Records
Under FISA, an FBI official (as low in rank
as Assistant Special Agent in Charge) may
apply for an “order requiring the production
of any tangible things (including books,
records, papers, documents, and other
items) for an investigation to protect against
international terrorism or clandestine
intelligence activities” …
67
Section 215: Records
provided that such investigation of a United
States person is not conducted solely upon
the basis of activities protected by the
first amendment to the Constitution

68
Section 215: Records
Judge is required to authorize the order if
he finds that the “application meets the
requirements of this section”
 The order may not disclose that it is issued
for purposes of an intelligence or terrorism
investigation

69
Section 215: Records
Gag clause: “No person shall disclose to
any other person (other than those persons
necessary to produce the tangible things
under this section) that the Federal Bureau
of Investigation has sought or obtained
tangible things under this section”

70
Section 215: Records
On a semiannual basis, the Attorney
General must provide a report to the
Permanent Select Committee on
Intelligence of the House of Representatives
and the Select Committee on Intelligence of
the Senate specifying total number of
applications, and number granted, modified,
or denied during the preceding 6 months
71
Libraries Post 9/11
Sept 2001: UCLA library employee
suspended for posting email critical of US
foreign policy
Sept 2001: Florida librarian reported
suspicious names to FBI, computer records
seized
Sept 2001: Broward County, Florida library
director subpoenaed for patron information

72
Libraries Post 9/11
October 2001: Fort Lauderdale and Coral
Springs libraries in Florida visited by FBI
Feb 2002: U. of Illinois Library Research
Center surveyed 1,020 public libraries—85
had received requests for patron
information

73
Libraries Post 9/11
July 2002: A St. Petersburg Times editorial
reported that library staff of Edison
Community College reported “three Middle
Eastern-looking men who were whispering
while using library computers to look up
Islamic newspapers.” Computer hard drives
were confiscated

74
Libraries Post 9/11
June 2002: FBI sought information about a
library patron from the Bridgeview Public
Library in Chicago
June 2002: Paterson, New Jersey Library
Director Cindy Czesak revealed to the
press, despite a gag order, that the FBI had
visited there seeking patron information

75
Patriot in the Library:
Congress
In a June 2002 letter to AG John Ashcroft, the
House Judiciary Committee asked 50 questions
about the implementation of Patriot, including in
libraries and bookstores
In its July 2002 reply, the Justice Department
declined to answer questions impacting
libraries/records, asserting that the information
was “classified”

76
Patriot in the Library:
Congress
October 2002: House Judiciary Chair
Sensenbrenner issued a press release after
reviewing classified data: “The
Committee’s review of classified
information related to FISA orders for
tangible records, such as library records,
has not given rise to any concern that the
authority is being misused or abused.”
77
Patriot in the Library:
Congress
But as the ACLU noted in a subsequent
lawsuit, “He did not undertake to disclose
those answers to the public.”

78
Patriot in Libraries: To the
Courts
The ACLU, Electronic Privacy Information
Center, American Booksellers Foundation,
and Freedom to Read Foundation filed suit
against the Justice Department for records
concerning implementation of Patriot in
libraries and bookstores, after the
Department of Justice failed to respond to
Freedom of Information Act requests
79
Concluding Thoughts
We don’t know how Patriot has been used
in libraries, and librarians cannot tell us
without risking prosecution
Librarians and the public have a right to
know what information is being collected
about Constitutionally-protected activities,
and to expect government accountability

80
Concluding Thoughts
Librarians have a rich professional history
of promoting and protecting intellectual
freedom
We agree with the ALA: The Patriot Act is
a clear and present danger to intellectual
freedom

81
Concluding Thoughts
The ALA therefore urges all libraries to:
Educate their users, staff, and
communities
Defend and support privacy and open
access to knowledge and information,
and

82
Concluding Thoughts
Adopt and implement patron privacy and
record retention policies that affirm that
‘the collection of personally identifiable
information should only be a matter of
routine or policy when necessary for the
fulfillment of the mission of the library’”

83