Journalism in the Public Interest

Remember When the Patriot Act Debate Was All About Library Records?

The early debate around a key provision wasn’t about anything like mass collection of phone records.

Surrounded by members of Congress, President Bush signs the Patriot Act on October 26, 2001. (Reuters/Kevin Lamarque)

In the months following the October 2001, passage of the Patriot Act, there was a heated public debate about the very provision of the law that we now know the government is using to vacuum up phone records of American citizens on a massive scale.

“A chilling intrusion” declared one op-ed in the Baltimore Sun.

But the consternation didn’t focus on anything like the mass collection of phone records.

Instead, the debate centered on something else: library records.

Salon ran a picture of a virtual Uncle Sam gazing at a startled library patron under the headline, “He knows what you’ve been checking out.” In one of many similar stories, the San Francisco Chronicle warned, “FBI checking out Americans' reading habits.”

The concern stemmed from the Patriot Act’s Section 215, which, in the case of a terrorism investigation, allows the FBI to ask a secret court to order production of “any tangible things” from a third party like a person or business. The law said this could include records, papers, documents, or books.

Civil liberties groups and librarians’ associations, which have long been fiercely protective of reader privacy, quickly raised fears of the FBI using that authority to snoop on circulation records.

The section even became known as the “library provision.”

Yet as the Guardian and others revealed this month, the government has invoked the same provision to collect metadata on phone traffic of the majority of all Americans — a far larger intrusion than anything civil libertarians warned about in their initial response.

“A person might uncharitably think of us as lacking in imagination,” says Lee Tien, a longtime attorney with the Electronic Frontier Foundation. 

In a speech before casting the sole dissenting vote in the Senate against the Patriot Act, Sen. Russ Feingold did zero in on Section 215 as “an enormous expansion of authority” with “minimal judicial supervision.”

But even Feingold did not conceive of the provision being used for bulk data collection, merely mentioning the possibility of individualized cases — for example, compelling “a library to release circulation records.”

Civil liberties advocates said in interviews there is a simple reason for the disconnect: In the period immediately after the Patriot Act passed, few if any observers believed Section 215 could authorize any kind of ongoing, large-scale collection of phone data.

They argue that only a radical and incorrect interpretation of the law allows the mass surveillance program the NSA has erected on the foundation of Section 215. The ACLU contends in a lawsuit filed last week that Section 215 does not legitimately authorize the metadata program.

The reason libraries became a focal point, Tien says, is that, “People could see that those kinds of records were very seriously connected to First Amendment activity and the librarians were going to war on it.”

Even before the Patriot Act passed, the American Library Association warned members of Congress that the business records provision under consideration would “eviscerate long-standing state laws and place the confidentiality of all library users at risk.”

“The library groups have a very well-informed and active lobby,” says Elizabeth Goiten, who co-directs the Brennan Center’s Liberty and National Security Program.

So has the government ever used Section 215 to get library records? We don’t know.

Testifying before Congress in March 2011, a Justice Department official said Section 215 “has never been used against a library to obtain circulation records.”

But as with so much else about the Patriot Act, how often or even whether the government has obtained library records is secret. Section 215 imposes a gag order on people or businesses who are compelled to produce records.

The FBI has also used a separate Patriot Act provision, issuing what is known as a national security letter, to seek library patron records. One such episode prompted a successful court challenge by Connecticut librarians in 2005-06.

The government itself didn’t get around to using Section 215 to vacuum up phone metadata until five years after the Patriot Act passed, in 2006, according to a new Washington Post report. The government had been sweeping up metadata since after 9/11 but apparently was doing so without a court order.

USA Today revealed that warrantless surveillance in 2006.  Around the same time, according to the Post, the telecoms asked the NSA to get a court order for the data, believing that it would offer them more protection.

On May 24, 2006 two weeks after the USA Today report, the secret Foreign Intelligence Surveillance Court decided to redefine relevant business records under Section 215 “as the entirety of a telephone company’s call database,” according to the Post.

Kate Martin, director of the Center for National Security Studies, says that she has for years worried about bulk collection of metadata, but believed the government might be justifying it using other provisions in the Patriot Act.

“It was a really novel idea on the part of the government that they could use 215 to get bulk phone records,” she says.

As part of the Patriot Act reauthorization of 2006, Congress changed some of the wording in Section 215. But because the government’s interpretation of the law is still secret, it’s not clear whether the changes made any difference in the court’s ultimate authorization of the metadata program.

I think the biggest problem now is that in 2001, people didn’t have Facebook, LinkedIn, etc. and the internet wasn’t as widely used for social networking as it is in 2013.  People didn’t have much to fear at the time; however, with all the social networking going on now….how can anyone NOT realize that their privacy is not their own?  People talk on their cells phones in public (so we can hear their conversations), they tell their life’s story on Facebook (and have thousands of so-called “friends” that they just automatically say “yes” to when asked to “friend them” knowing who they’re actually allowing into their lives), people put their profiles out on LinkedIn, they swipe their “club” cards at grocery stores (not realizing that all your eating habits are now part of the store’s databank), etc., etc., etc.  We cannot possibly think that there’s any modicum of privacy with the internet, credit cards, club cards, etc. being monitored…..why would we care if the NSA is gathering our metadata…..we tell everyone everything on line anyway.  Doesn’t bother me in the least….if you’re not doing anything wrong; you have nothing to worry about.  Just my opinion.

Needless to say Corporations, especially ones owned and operated by Donald Rumsfeld and Dick Cheney, exploited the use of technological advancements for their own gain instead of to help solve the world’s problems. Profits before people are always their goal and the NSA document was written to support that goal.

Shari Lieber Silverman

June 17, 2013, 6:50 p.m.

“...if you’re not doing anything wrong; you have nothing to worry about.” Who gets to define “wrong”?

Legally protesting involvement in a war? Peaceably marching for civil rights? Against nuclear reactors being built, signed a petition to that effect? Vegetarian? Quaker?

All the above were considered “wrong” under Hoover’s FBI - who is the next Hoover?

If we are a country based on law, then no matter who is in charge, citizens are protected. If we depend on the benevolence of those with power, then we are not protected because the definition of “wrong” varies with the “who” in power.

We are being inflicted with security violations dedicated to support private and corporate objectives.  This is all being done, not to support government and national security objectives, but to support the takeover of our government by corporate entities.  They are not doing this to protect the people.  This is to protect and enhance the profits.
It is for profits.  Profits for corporations that the supreme court says are persons.  It’s wrong.
Corporations have no business running this.  It should be run, if at all, by people, civil service government workers, not by profit motivated corporations.  I am pissed.

@ Didi Paano;
“..if you’re not doing anything wrong; you have nothing to worry about.  Just my opinion.”..Yes..but whom decides what is right/wrong, when it is right/wrong, how it is right/wrong? Just because you “trust” the system, and have noting to worry another way of saying I’m not worried as long as it doesn’t effect my well being..i.e. my secrets are kept secret..
Like John Lennon said, ‘Everyone has something to hide except for Me and My Monkey”

James M. Fitzsimmons

June 18, 2013, 7:49 a.m.

A major scandal related to this issue, in my opinion, is the media’s contrasting treatment when something negative occurs on the current president’s watch as opposed to when it happened on the previous president’s watch.  The daily spin by the pro Obama, anti Bush left leaning media skews perception of objective reality. The 5th year into the Obama administration and the president is often detached from all things negative. The picture accompanying this article is of Bush subtly or not so subtly suggesting that he is responsible for the continuing “chilling intrusion”. Obama is not mentioned in the article. Over time this continuous depiction of Republicans, conservatives i.e. any group thinking differently then “Progressives” as oppressive, immoral, greedy, criminal etc. has impact on the psyche of the average observer.

Didi, the way they sell surveillance is to get everybody thinking in exactly that self-serving way.

I don’t have much to hide, myself, but what about, say, whistleblowers?  We now have two examples that pointing out illegal activity in government is now considered punishable by torture and at least threatened with death.

What about abused significant others of the secret cabal that’s allowed access to this data?  Would you want a (pardon the sexist example, by the way) hypothetical daughter’s jealous boyfriend to have access to all her call records and e-mail on a say-so that maybe she’s involved in terrorists?

How about journalists, who routinely have something to hide, like to protect the identities of their sources?

There’s also closeted gay people or religious minorities in intolerant communities.  There are psychologists, clergymen, and lawyers who interact directly with people who have something to hide and have laws protecting that relationship.  There are businessmen and protestors and politicians who don’t need long-term secrets, but whose projects are worthless without surprise.

You and I may not have much to hide, but you and I might also not need welfare, but I’d bet we both think it’s a better idea to provide it than let people starve to death.

That doesn’t even get into the “victimless” abuse of knowing about corporate mergers weeks in advance, being able to leak information about a political opponent, or even selling a celebrity story to a magazine, complete with proof.

Also, let’s turn that concept around.  The government hid this surveillance campaign from everybody, and is angry that the veil of secrecy is open.  By the logic of “if you’re doing nothing wrong, you have nothing to hide,” doesn’t that mean the campaign is wrong?

We can even go a step further, if you want, even if we still want to trust that nobody in government would ever misuse the data (which seems improbable).  How is this information protected?  Government contractors tend to be terrible with security, which is why there’s an annual story of someone buying a decommissioned laptop with spreadsheets of soldiers, taxpayers, or contractors with Social Security numbers and contact information on them.  What would happen if the North Korean government got access to a small piece of this database, with a politician’s metadata?  What about a mob boss?  How about a lobbyist?

Lastly, since no terrorist in his right mind is going to use GMail and a cellphone in his own name, since everybody knows that data isn’t secure, then they’re not the target.  You can see this in the Boston Marathon bombings, where they couldn’t be bothered to track a known terrorist even with him on a watch list and the Russian government warning us.  So if attackers aren’t the target, that leaves us as the target of military surveillance, for no reason.

(Considering that Posse Comitatus declares military involvement on American soil forbidden, and this violates or puts pressure on more than a few Amendments in the Bill of Rights, this program is also by definition an act of Treason, no matter how many laws Congress passed because Dick Cheney asked committee heads to lie.)

Remember when it seemed Obama had courage and convection?

clArence swinney

June 18, 2013, 3:43 p.m.

REAGAN=Nnicarauga-El Salvador- Hondurss-Lebanon
BUSH I——Iraq—Kosovo-Somalia
BUSH II=Iraq—Afghanistan—Pakistan
How many innocents were killed due to our involvement?

Rosalyn Mitchell

June 18, 2013, 6:27 p.m.

To have secret courts, secret findings, secret interpretations, gag orders, etc., is not the stuff of a democratic republic—that is the classic way dictatorships operate.

Library records are probably more sensitive to fishing expeditions than phone call connections.  Have you checked out the book 1984 by George Orwell? 

PS the library follows the laws on censorship and reports to the law and always has quietly cooperated with police.  I remember seeing a video about 20 years ago about the panama invasion at a library and when I went back 2 weeks later to check it out again (vhs days) it was gone and there was no record of it. When I asked the librarian she wanted my name to put on a list so she could “call me when she found it”.  I left without identifying myself since seeing it would have been a criminal offense at the time.  For those who weren’t around the panama invasion, , was several thousands strong military force used on the pretext of capturing a suspected drug dealer who was elected president of the nation of panama and to invoke a presidential ordered news blackout (censorship and targeting of news reporters on sight) for security and our safety.  Every nation except the US condemned our international “police action” as an act of war but no mainstream news or library would talk about it as anything other than positive.

If you think about it, any “intelligence” service that needs to get literally every bit of electronic data is a clear indication that they don’t know what they’re looking for or worse, what to look for.

Mark, while it’s not the purpose they’re talking about here, there actually is a valid reason for an intelligence dragnet, which is counter-intelligence.

If I’m a big-time investor (I’m not) and you’re looking through my trash (don’t bother), and you see biotechnology magazines, you can bet that I’m looking at investing in the field.  If you see an annual report from a drug company, you probably now know what my plan is, and can either profit from it or stymie it, just based on circumstantial evidence.

Again, I don’t believe that’s what the NSA is doing, here.  However, analogously, they could monitor everybody’s calls so that a mole can’t figure out who the real targets are.

(For similar reasons, I’ve read that 99% of the CIA’s archives are entire newspapers and video from news programs.  They were used to target an investigation, but because knowledge of interest leads to the same target, it gets classified for years, taking up space until they’re allowed to declassify a fifteen minute clip of CNN that anybody can probably find on YouTube and millions of other people watched.

Steve, it might be unfair to point at libraries, regarding censorship.  Especially given that their budgets come from the government, they’re far more resilient to censorship than the nightly news.  They’ve already taken it as fact that Snowden is working for the Chinese and fifty plots were foiled thanks to PRISM, despite the fact that the people announcing this were saying that they didn’t collect any data and Snowden wasn’t worth listening to, just a week ago.

American Patriot

June 22, 2013, 7:53 a.m.

Edward Snowden is a true patriot in the purest sense of the word.  Anyone who tries to rationalize a government spying on its citizens under the premise of “protecting” us from unknown enemies is sadly throwing away all the principles and rights that our country was founded upon.

Taking this warped logic to the extreme, would the same people who support government spying on its citizens also support the same government if the government began arresting people because they might commit a crime?  We need to demand that our government stop all snooping on its citizens.

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