USA Patriot Act Intellectual Freedom by fzw45252


									USA Patriot Act & Intellectual

           Carrie Lybecker
            Liza Rognas
             Carlos Diaz

       The Evergreen State College
            February 28, 2003

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
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
USA Patriot Act
Uniting and Strengthening America by
 Providing Appropriate Tools Required to
 Intercept and Obstruct Terrorism Act of
Public Law 107-56
H.R. 3162

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
Minimizes or eliminates judicial and congressional
 oversight and accountability
Increases government secrecy

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

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

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,

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

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

Library Awareness Program
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.

Library Awareness Program
“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)

Library Awareness Program
“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

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

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”

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

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

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
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
Criminal vs. Intelligence
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
Criminal & Intelligence
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

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.
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

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

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

FISA Prior to Patriot
Seven member secret court appointed by Supreme
 Court to approve applications for intelligence-
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
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

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

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

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
Section 214: Pen/Trap (FISA)
Section 214 pertains to electronic
 surveillance, Pen/Trap acquisition of
 electronic information in intelligence

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

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

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,”
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”

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

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."

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
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”

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

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

Section 218: Foreign
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

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

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
FISC Opinion
“This may be because the government is
 unable to meet the substantive
 requirements” of law applicable to criminal
 investigation, and

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”

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

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.
FISC Opinion
The court ruled against Ashcroft and
 ordered the DOJ to retain separation
 between criminal and intelligence
The DOJ appealed to the FISA Court of
 Review (FISCR)

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]
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

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

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
Congress held hearings and exchanged a
 series of letters with the FBI

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

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

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

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:




IIT Research Institute
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
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
Providers do not need to be specified

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
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

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

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.”

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

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” …
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

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

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”

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
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
Sept 2001: Broward County, Florida library
 director subpoenaed for patron information

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

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

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

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”
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.”
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.”

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
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

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

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

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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