Don’t think what you read is your own private business, because it’s not: The FBI, without any judicial review, can take your library records and gag librarians from revealing their visit. At least the Black Gold Cooperative Library System—the consortium of public book lenders throughout San Luis Obispo, Santa Barbara, and Ventura counties—gives patrons fair warning.
Black Gold recently added a nifty feature to the consortium website, allowing cardholders to compile personal book lists: books they plan to read or have read. But there’s a catch. Readers are advised before establishing the “Saved Title” lists online: “The feature you have selected is associated with personal data in your patron account. Such data may be accessed by law enforcement personnel without your consent. Do you wish to continue?”
“Normally, we don’t keep a record of what an individual has borrowed,” said Judith Rohr, assistant director of the SLO County Library.
That’s aside from whatever’s currently on loan. The libraries don’t archive borrowing histories precisely in case the feds come knocking.
“Because of privacy concerns, we don’t tell somebody else what you have checked out,” Rohr said. “Most public libraries adhere to a policy of confidentiality.”
But the Save Title lists are an optional exception patrons assume at their own risk; the lists are retained for their convenience.
The Patriot Act authorizes what amount to federal black bag jobs in broad daylight and jail time for anyone who blows the whistle. Since the act was hurriedly passed by Congress following the 9/11 attacks, it has deeply troubled librarians and others who say provisions blatantly violate Constitutional protections against unwarranted searches and muzzle free speech.
There are two ways the FBI can pry reader records from the libraries. Agents can obtain a warrant (called a FISA warrant, short for the Foreign Intelligence Surveillance Act of 1978) from a judge in the Foreign Intelligence Surveillance Court in Washington, DC, whose proceedings are largely kept secret. That’s the same court from which agents of the National Security Agency during the George W. Bush administration should have obtained warrants when they put in place a massive telephone intercept program.
That court has been a virtual rubber stamp for warrant requests (in 2008, for example, it granted 2,083 applications for surveillance and physical search but denied only one), but at least a judge does rule whether probable cause exists to issue a warrant. Alternatively, under the Patriot Act, the FBI can dispense with that—or any other—judicial formality and write its own demand, a National Security Letter (NSL).
Until December 2008, librarians presented with an NSL had no recourse but to comply and keep their mouths shut. They couldn’t legally divulge even to an attorney or another federal agency that they’d received the letter. Courts commonly apply gag orders to search warrants for a short time—typically 30 days or less—to protect an investigation, but the gag orders coincident with NSLs continue as long as the FBI wants them to, possibly for decades.
“That’s part of the Constitutional problem: It’s a prior restraint on speech that has no limits,” the American Library Association’s acting director for intellectual freedom, Deborah Caldwell-Stone, pointed out about NSLs and their chilling effect.
In December 2008, the U.S. Second Circuit Court of Appeals affirmed that NSL recipients do at least have the right to challenge an NSL and associated gag order, and the burden falls on the government to institute a court proceeding to hear the complaint. The law is being changed to reflect that verdict since the government has declined to appeal.
Last year, the FBI made 24,744 NSL requests for information about 7,225 people in the United States. The year before, the FBI made 16,804 NSL requests for information about 4,327 U.S. individuals. Does the ALA have any idea how many applied to library records? Caldwell-Stone doesn’t: “We have no way of finding out because it’s a secret process,” she said.
One instance that’s been made public concerned the Library Connection, a consortium in Connecticut very much like Black Gold, which received an NSL in 2005 seeking all records pertaining to their computers. The organization refused to comply and sought help from the ACLU, which challenged the letter. The only reason even that much is known is because the FBI eventually withdrew the NSL and gag order and Library Connection staffers were therefore free to speak up.
“We’ve never said that library records are sacrosanct, but what we do say is that before they’re turned over, there should be a heightened legal review of the reasons law enforcement believe justify them looking at records, which would have a potential chilling effect on First Amendment activity,” Caldwell-Stone said. “Going into someone’s reading records to determine whether they’re a criminal, have engaged in criminal activity, to judge their character, [it] can lead to bad things, as we’ve all learned from history.”
Ed Connolly is editor of New Times, the Sun’s sister paper in San Luis Obispo. Contact him at econnolly @newtimesslo.com.
This article appears in Jul 2-9, 2009.
