Usa Patriot Act & Intellectual Freedom: Carrie Lybecker Liza Rognas Carlos Diaz

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

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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

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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

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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)

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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

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

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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

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

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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

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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

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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 intelligencegathering  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

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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

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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”

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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

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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."

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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”

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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

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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

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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

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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

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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)

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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

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

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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

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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. email 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

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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

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

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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.”

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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

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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

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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”

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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

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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.”

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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

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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

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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’”

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