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USA Patriot Act


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Title: USA Patriot Act

USA Patriot Act Intellectual Freedom
  • 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 2001
  • 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 ones interest
    examined or scrutinized by others
  • Privacy is essential to the exercise of free
    speech, free thought, and free association, and

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 aliens
  • 1948 ALA opposed loyalty oaths
  • 1953 McCarthy attacked overseas library
    collections, books burned
  • 1953 ALA Freedom to Read

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.

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)

Library Awareness Program 1960s-1980s
  • Jaia Barrett of the Association of Research
    Libraries wondered Whats the next step?
    Classifying road maps because they show where
    bridges are for terrorists to blow up?Natalie
    Robbins, The FBIs 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

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 Right
  • First Amendment religion, speech, press,
    petition, assembly
  • Fourth Amendment privacy, probable cause
  • 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 seized

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 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

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

History 1950s-1970s
  • FBI maintained campaign of surveillance,
    disinformation, and disruption targeting Dr.
    Martin Luther King, Jr., Amnesty International,
    ACLU, antiwar and womens 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 conviction

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
  • 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

FISA Prior to Patriot
  • Courts 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
  • Allows or mandates information sharing among
  • Decreases congressional and judicial oversight

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 investigations

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
  • 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 information

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 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

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

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

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

FISC Opinion
  • The Court found that most of the FBIs 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 investigations
  • The DOJ appealed to the FISA Court of Review

FISCR Opinion
  • The FISCR convened for the first time and issued
    an opinion reversing FISC decision, citing
    Patriots 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
  • Carnivore is a system of software and hardware
    that captures electronic communications over a

  • 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

  • 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
  • It is impossible to trace the actions to
    specific individuals

  • Carnivore can perform fine-tuned (surgical)
  • It is also capable of broad sweeps. Incorrectly
    configured, Carnivore can record any traffic it
  • 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 investigation

Section 216 Carnivore
  • Pen/trap orders nationwide may now be authorized
    by courts located outside the communication
    providers geographic area, and the order neednt
    specify a geographic area
  • 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

Section 206 Roving Wiretaps
  • Includes gag clauserecipient 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 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 seized
  • 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 libraries85 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
  • 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 Committees 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 dont 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 freedom
  • We agree with the ALA The Patriot Act is a clear
    and present danger to intellectual freedom

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

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