The USA PATRIOT Act and the Library

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The USA PATRIOT Act and the Library
donna Bair-Mundy
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Discussion question
What is privacy? Why do we need it?
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Informational privacy - Westin's definition -
part 1
Privacy is the claim of individuals, groups, or
institutions to determine for themselves when,
how, and to what extent information about them
is communicated to others.
Westin, Alan F. 1970. Privacy and freedom.
London Bodley Head.
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Informational privacy - Westin's definition -
part 2
Viewed in terms of the relation of the individual
to social participation, privacy is the
voluntary and temporary withdrawal of a person
from the general society through physical or
psychological means, either in a state of
solitude or, when among larger groups, in a
condition of anonymity or reserve.
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Informational privacy - Westin's definition -
part 3
The individual's desire for privacy is never
absolute, since participation in society is an
equally powerful desire.
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Informational privacy - Westin's definition -
part 4
Thus each individual is continually engaged in a
personal adjustment process in which he balances
the desire for privacy with the desire for
disclosure and communication of himself to
others, in light of the environmental conditions
and social norms set by the society in which he
lives.
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Informational privacy - Westin's definition -
part 5
The individual does so in the face of pressures
from the curiosity of others and from the
processes of surveillance that every society
sets in order to enforce its social norms.
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Westin's privacy theory 4 functions of privacy
Desire to avoid being manipulated or dominated
wholly by others
Release from tensions of life in society requires
release from pressure of playing social roles
Personal autonomy
Emotional release
Self-evaluation
Limited protected communication
Need to integrate experiences into meaningful
pattern essential for creativity
Share confidences and intimacies only with those
one trusts
Westin, Alan F. 1970. Privacy and freedom.
London Bodley Head.
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Individual privacy versus individual secrecy
Privacy Allowed and in some cases required for
socially-sanctioned acts. Stress reducing.
Secrecy Involves socially proscribed
acts. Stress inducing.
Margulis, Stephen T. 1977. Conceptions of
privacy current status and next steps. Journal
of social issues 33(3)5-21, p. 10. Margulis,
Stephen T. 2003. Privacy as a social issue and
behavioral concept. Journal of social issues
59(2)243-261.
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Election day
Us
Them
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On the network news
Ayman al-Zawahiri
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So you do a search . . .
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A few days later . . .
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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.
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General warrants (1)

• No specific individual
• No specific crime
• No specific place to be searched
• No specific items to be sought

• Illegal according to Sir Edward Cokes Institutes
  of the Lawes of England (first published 1642 and
  1644)
• Illegality confirmed by Sir Matthew Hale
• Illegality confirmed by Sir William Blackstone

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General warrants (2)

• Suspicion of crime related to government revenue
• Used against anyone who dared to challenge or
  limit the authority of Parliament or the crown

• John Wilkes (member of Parliament)
• Anonymously wrote critical essay published in
  North Briton
• General warrant leads to massive arrests, Wilkes
  ? Tower of London

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Writs of assistance

• Any customs official could enter any House,
  shop, Cellar, Warehouse or Room or other
  Place...
• Seize unaccustomed goods
• Lasted for the life of the sovereign under which
  it was issued plus six months

• According to John Adams, major factor in seeking
  American Independence

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Amendment IX
(the compromise)
The enumeration in the Constitution, of certain
rights, shall not be construed to deny or
disparage others retained by the people.
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Discussion question
Why do we need surveillance?
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Need for surveillance (1)
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Need for surveillance (2)
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Need for surveillance (2)
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Need for surveillance (2)
Train Depart Arrive
1 230 p.m. 630 p.m.
2 330 p.m. 800 p.m.
Beniger, James R. 1986. The control revolution
technological and economic origins of the
Information Society. Cambridge, Mass. Harvard
University Press.
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Surveillance in a transforming society
Zuboff, Shoshana. 1988. In the age of the smart
machine the future of work and power. New York
Basic Books.
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Roles of Surveillance (1)
Used to catch the criminals
Necessitated by technology
Facilitated by technology
Used as means to control workers
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Roles of surveillance (2)
Provision of services (Social Security)
Allows participation (Voter registration)
Protection against threat

• Means of social control
• Discover and rout out deviance
• Threat of surveillance used to promote compliance
  with the law

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Routing out deviants
Round-up of Pennsylvania Quakers (1777)
Sedition Act of 1798
Espionage Act of 1917 1918 amend.
Internment of persons of Japanese ancestryWW II
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Surveillance - Plague model
Highly visible
Isolation and observation
Social control
Foucault, Michel. 1995. Discipline and punish
the birth of the prison. New York Vintage Books.
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SurveillancePanopticon model
Jeremy Bentham

• Legal theorist
• Rationalism
• Utilitarianism
• Eccentric

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Jeremy Benthams Panopticon
cells
entry
inspectors lodge
walkway
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Panopticon society
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Communication Interception
1870s Telephone invented
1830s Telegraph invented
1960s Packet switching
1880s First reports of wiretaps in press
Packet sniffers
1860s Wiretapping during Civil War
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Re-thinking constitutional privacy
Hearings on surveillance activities by federal
agencies first looked at IRS
1964- U.S. Senate Long Subcommittee
Not on wire-tapping. "Zone of privacy" created
by 1st, 3rd, 4th, 5th, and 9th amendments
1965 Griswold v. Connecticut 381 U.S. 479
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No warrantless wiretapping in criminal cases
1967 Katz v. United States 389 U.S. 347
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Congress Acts
1968 The Omnibus Crime Control and Safe Streets
Act of 1968 (Federal Wiretapping Act),
U.S. Code 18 USC Section 2510 et seq.
Wiretapping illegal but when crime has been or is
being committed law enforcement can, with a
warrant, engage in wiretapping for limited
periods. Provides judicial oversight for law
enforcement wiretapping.
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National security wiretapping
1972 U.S. v. U.S. District Court for the Eastern
District of Michigan Keith
the customary Fourth Amendment requirement of
judicial approval before initiation of a search
applies in domestic security cases
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Articles in the New York Times with the word
Orwellian
1974 (major Watergate revelations)
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Information Privacy
Privacy Act of 1974
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Privacy Act of 1974

• Government should be more open about data it
  keeps on individuals.

• Individuals have a right to see information the
  government collects and to correct data that is
  incorrect.

• Limits on information that can be collected and
  uses of that information  

• Limits on external disclosures of information
  collected

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FISA
1978 Foreign Intelligence Surveillance Act
U.S. Code 50 USC Sections 1801-1863
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Electronic mail
1993 ECPA Electronic Communications Privacy Act
Addressed the need to protect e-mail.
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ECPA
 2511. Interception and disclosure of wire,
oral, or electronic communications prohibited
2701. Unlawful access to stored communications
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ECPA
(c) Exceptions. Subsection (a) of this section
does not apply with respect to conduct
authorized (1) by the person or entity providing
a wire or electronic communications service (2)
by a user of that service with respect to a
communication of or intended for that user or
(3) in section 2703, 2704 or 2518 of this title.
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September 11, 2001
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Congress Acts
USA PATRIOT Act
Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept
and Obstruct Terrorism
Public law 107-56 155 Stat. 272.
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Path to the USA PATRIOT Act
Asst. Atty. Gen. Viet Dinh
MATA/ATA (DOJ Bill)
Senate
House
Rep. James Sensenbrenner
H.R. 2975 USA Act
S. 1510 USA Act
Sen. Patrick Leahy
H.Res. 264
Judiciary Comm.
H.R. 3108
Signed into law by President George W. Bush
October 26, 2001
H.R. 3162 USA PATRIOT Act
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The USA PATRIOT Act
H.R. 3162
The Purpose
To deter and punish terrorist acts in the United
States and around the world, to enhance law
enforcement investigatory tools, and for other
purposes.
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The USA PATRIOT Act
The Language
SEC. 218. FOREIGN INTELLIGENCE INFORMATION. Sectio
ns 104(a)(7)(B) and section 303(a)(7)(B) (50
U.S.C. 1804(a)(7)(B) and 1823(a)(7)(B)) of the
Foreign Intelligence Surveillance Act of 1978 are
each amended by striking the purpose' and
inserting a significant purpose'.
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The U.S. Code
Sections 104(a)(7)(B) and section 303(a)(7)(B)
(50 U.S.C. 1804(a)(7)(B) and 1823(a)(7)(B)) of
the Foreign Intelligence Surveillance Act of 1978
are each amended by striking the purpose' and
inserting a significant purpose'.
TITLE 50 gt CHAPTER 36 gt SUBCHAPTER I gt  1804.
Applications for court orders
(7) a certification (B) that the purpose of
the surveillance is to obtain foreign
intelligence information
(7) a certification (B) that a significant
purpose of the surveillance is to obtain foreign
intelligence information
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Investigative powers in US Code After USA
PATRIOT Act
1968 Federal Wiretapping Act
1978 Foreign Intelligence Surveillance Act
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Provisions in the PATRIOT Act
Computer communications
Attack
Attack
takeover
Hackers Computer
Victim Computer
Intermediary Computer
Before PATRIOT Act Operator of intermediary
computer could not allow law enforcement access
to hackers communication on intermediary
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Provisions in the PATRIOT Act
Roving wiretaps in FISA cases
Wiretaps can move from telephone to telephone and
jurisdiction to jurisdiction without getting
additional warrants
Problem Law enforcement can wiretap any
telephone used by a suspect even when not being
used by the suspect
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The USA PATRIOT Act
The Complaints Records vulnerable
Section 215Amending FISA 501(a) The Director of
the FBI or a designee of the Director ... may
make an application 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, 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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The USA PATRIOT Act
The ComplaintsFreedom of Speech
Section 215Amending FISA 501(d) 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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ALA on government intrusion
The First Amendments guarantee of freedom of
speech and of the press requires that the
corresponding rights to hear what is spoken and
read what is written be preserved, free from fear
of government intrusion, intimidation, or
reprisal.
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ALA on the PATRIOT Act
The American Library Association (ALA) opposes
any use of governmental power to suppress the
free and open exchange of knowledge and
information or to intimidate individuals
exercising free inquiryALA considers that
sections of the USA PATRIOT ACT are a present
danger to the constitutional rights and privacy
rights of library users.
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Department of Justice
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Department of Justice
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USA PATRIOT Act Libraries

• 2005 FBI presents National Security letter and
  demands any and all subscriber information,
  billing information, and access logs of any
  person or entity associated with a specified IP
  address during a specified period
• Librarians fought gag order in court
• Librarians speak out

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Library Awareness Program

• Begun during Cold War
• Desire to restrict access to unclassified
  scientific information by foreign nationals
• Desire to recruit librarians to report on
  foreigners
• Agent told librarians to report name and reading
  habits of anyone with a foreign sounding name or
  foreign sounding accent
• Librarians who criticized program were
  investigated

Curt Gentry gives onset year as 1962 Gentry,
Curt. 1991. J. Edgar Hoover the man and the
secrets. New York Norton., pp. 759-760.