Feature: Wednesday, April 17, 2003
Spies in the Stacks

Is Uncle Sam watching what you read? We’re no allowed to tell

By Dan Malone

Not so long ago, what you read was nobody’s business but your own. If you helped a child research jihad for a class paper, indulged a personal curiosity about smallpox, or wasted an evening reading The Turner Diaries, that was between you and the bookshelf.

Today, some fear, what you read might well wind up in an FBI file. Like credit cards, internet accounts, and phone bills, the library card in your wallet has become yet another tracer the government can use to identify and collect personal information about you in the unfolding war on terror.

Librarians say that a provision of the USA Patriot Act, the anti-terror measure Congress passed following Sept. 11, makes it easier for government to access the records of library patrons, book-buyers, and internet users. At the same time, they say the law makes it virtually impossible for individuals — or the public — to know if, or how often, such intrusive snooping takes place. In the smoke and shadows of the war on terror, this is, perhaps, the equivalent of double-secret probation, an invasion of privacy so secretive that even the victim is unaware of the intrusion. Has the FBI copied your book-borrowing records? Your librarian isn’t allowed to say.

Librarians are, however, asking Congress to repeal the most objectionable aspects of the Patriot Act — provisions which they say threaten “the rights of inquiry and free expression.’’ They’re also trying to force the government, through a lawsuit, to release information on how the law is enforced. The Patriot Act’s critics say they’re fighting for the same rights colonists secured in the American Revolution.

Their concern isn’t merely theoretical. One national survey of librarians indicates that law enforcement already has requested patron records from more than 500 collections since Sept. 11. But the researchers who conducted the survey say the actual number of requests may be much larger — and unknowable — because of the secrecy the Patriot Act imposes on public libraries.

Interviews with area librarians found no evidence of federal agents craning over the shoulders of circulation clerks. But one Fort Worth librarian responded to a question about the Patriot Act’s gag order on librarians with what once passed for a joke: “I could tell you, but I’d have to shoot you.”

Prying into patron records is just one of the ways that terrorism is changing the relationship between libraries and patrons. In the topsy-turvy world after Sept. 11, guardians of information have been transformed into destroyers of data. Librarians on at least two North Texas university campuses were among those forced to destroy c.d.’s containing information about public water supplies because of government concerns about terrorism.

“It’s in pieces,’’ said Cathy Hartman of the University of North Texas in Denton.

“We used a razor blade to make it unreadable,’’ said Texas Christian University’s Brenda Barnes.

Equally bizarre events are being reported around the nation, according to librarians and library patrons. In Ohio, for example, local homeland security officials last month appeared at two libraries saying they were updating hazardous material emergency plans filed at the reference desk. When librarians later checked on the “updates,’’ they found that the plan was instead removed from its loose-leaf binder and replaced with a page referring any questions to the homeland security agency. In Colorado, patrons staged a “subversive book checkout’’ to protest the prospect of spies in the stacks. In New Mexico, a former public defender was arrested while sitting at a public computer terminal at a Santa Fe library and interrogated for five hours by federal agents. The lawyer’s comment to an anti-war activist at the library that President Bush was out of control was somehow translated as a threat.

Security concerns have brought out the best and worst in the librarian profession. In California, according to one account, librarians are feeding records on patrons’ use into a shredder so they can’t ever be searched or subpoenaed, even as staffers at other libraries are handing over materials to police who simply ask for them — no warrant or order required.

Librarians are even beginning to wonder whether the FBI might be spying on them. Their fears were based, in part, on a man who identified himself as a retired federal agent during a recent American Library Association conference. The former agent, who now runs a security consulting business in Florida, told Fort Worth Weekly he was merely accompanying a companion to the conference — not snooping. Still, his presence caused some to start looking over their shoulders.

“To think that the FBI would be interested in us! We’re librarians, my goodness,’’ said one North Texas librarian who shared background information about the agent and the incident with a reporter.

“You asked me how librarians are feeling the ‘chill’ of FBI visits,’’ she continued. “Well, this is how: I am going to ask you to please not mention my name in connection with the information contained in this e-mail. I would like to remain anonymous. I have never told this to a reporter before.’’

If the price of liberty is eternal vigilance, it’s because the attacks are frequent — and come from within. The Patriot Act, according to Melody Kelly, the associate dean of libraries at the University of North Texas, is merely the latest chapter in a long history of such restrictions on civil liberties in the United States.

“It’s happened before,’’ she said. “It happened before at the beginning of the country [with] the Alien and Sedition Act,” the notorious 18th-century legislation that temporarily outlawed “scandalous and malicious’’ writing against the government. Similar attempts were made to roll back freedoms during virtually all of the nation’s major wars, from the Civil War to Vietnam, she said.

The assault on liberties made in the name of the war on terror, however, is unlike its predecessors because of our society’s reliance on computerized records — blips of data that record conversations and transactions both mundane and momentous.

“The major difference today is the technology is so different from what it had been in the past, ‘’ Kelly said. “The electronic technology allows you to go further ... than they’ve ever been able to go before. Plus, our own systems are our greatest enemies in some ways. Before, if you deleted a paper record by shredding it or throwing it away, it was gone. But with electronics, there is a capability of going back and reconnecting. E-mail is never deleted.’’

At the Fort Worth Pubic Library, for example, computer records show what books an individual currently has checked out and what fines they might owe. But Deborah Duke, the collections management administrator, said the library’s computer system is so antiquated it is not possible to retrieve historical records. “It’s an old-style system, and there aren’t many advantages to it, but this is one,’’ she explained.

Others aren’t so sure, however. University of Texas at Arlington Library Director Tom Wilding says even when records have been erased or overwritten, a residue of data remains “just like Oliver North found out.’’

“It’s possible to get information out,’’ he acknowledged. “Just because you erase something doesn’t mean that it’s erased.”

If you want to test your threshold for paranoia, ask your librarian whether the FBI has been asking about the books you’ve checked out.

“We’ve been told that is a question we can’t answer,’’ said Hartman, UNT’s document librarian.

“We’re not allowed to inform patrons if their records are requested,’’ said TCU library administrator Bob Seal.

The Patriot Act allows officials to seek search warrants for “any tangible things (including books, records, papers, documents and other items) for an investigation to protect against terrorism.’’ It also forbids anyone from disclosing “to any other person ... that the Federal Bureau of Investigation has sought or obtained tangible things under this section.’’

It’s difficult, therefore, to tell how often government has tried, successfully or not, to gather such information. The Weekly wanted to ask the local FBI office how often its agents have used the Patriot Act, but the office spokesperson, Lori Bailey, didn’t return phone calls. The Fort Worth Police Department and the Tarrant County Sheriff’s Office said they have never used the Patriot Act to access library patron records. The law itself mentions only the FBI — not local police — but some information suggests local police use the act as well.

Fort Worth Public Library Director Gleniece Robinson said she is aware of only one such request for any patron’s records — and the library was unable to help because it had nothing. That case, she said, involved credit card abuse involving a library computer and had nothing to do with terrorism.

The American Library Association’s code of ethics, which was adopted before Sept. 11, straightforwardly commits librarians to protecting the privacy of patrons — and also places those who do so at odds with increasingly intrusive government agents.

“We uphold the principles of intellectual freedom and resist all efforts to censor library resources,’’ the ethical guidelines state. “We protect each library user’s right to privacy and confidentiality with respect to information sought or received and resources consulted, borrowed, acquired or transmitted.”

Gloria Meraz, spokeswoman for the Texas Library Association, said members are concerned about the erosion of privacy rights posed by the Patriot Act but are having a hard time getting a handle on the issue because of the secrecy surrounding it.

“I get a sense that it’s a real problem,’’ she said. But it’s difficult to quantify “because of this conflict where they [librarians] can’t give specifics” about a search if they’re been served with a warrant.

One measure of how frequently the act is used comes from the Library Research Center of the University of Illinois at Urbana-Champaign, home of one of the nation’s elite information sciences programs. The center surveyed about one third of the nation’s 5,000 largest public libraries on how Sept. 11 has affected their operations and policies. The October 2002 study estimated that law enforcement had requested patron records from more than 500 collections during the year following the terrorist attacks on Washington and New York.

That number was actually less than the number of libraries that reported similar requests the year before the terror attacks — a drop that researchers say may be the result of the secrecy provision of the Patriot Act. A warning about the secrecy provision, which suggested that libraries might want to talk to a lawyer before answering the survey, may have worked, the researchers said, “as a deterrent to candid answers.’’

About 65 percent of the requests for records came from local police officials and 30 percent from the FBI. Some requests amount to little more than fishing expeditions, with agents asking for lists of persons who have borrowed a specific book. More frequently, agents requested a list of all the books a particular patron had borrowed.

More than 900 librarians believe “there are circumstances in which it would be necessary to compromise the privacy of patron records.’’ More than 400 said they are “more likely to monitor material people are checking out.’’ And about 200 workers said they have voluntarily reported suspicious patron behavior to officials.

Perhaps the most disturbing finding of all was not highlighted in the summary.

While law enforcement in most cases must obtain a court order or subpoena to access records, the survey said librarians who received nothing more than a verbal or written request for records voluntarily cooperated with law enforcement 49 percent of the time. In other words, whatever agents might have been looking for was theirs for the asking — no court order or subpoena needed.

Administrators at several area libraries said they now have policies dealing with how to respond to requests by law enforcement about patron records. “They’re going to have to have a warrant or a subpoena,’’ says UNT’s Hartman. “We don’t just give it to them.’’ Whatever form the request takes, it would typically be referred to the library’s administrator and then on to its legal counsel — a city attorney or a university administration lawyer.

David Price, an anthropologist at St. Martin’s College in Washington, is sharply critical of how librarians have responded to the Patriot Act. He calls such a policy an “administrative dodge. ... “[T]hese policies are simply saying “we will obey the law — even a bad law, which in fact has little to do with ethics.”

Price has been pelted with hundreds of e-mails of praise and scorn since he wrote in an essay in CounterPunch, a muckraking political newsletter, that librarians may become “the equivalent of FBI extension agents, serving at the beck and call of John Ashcroft and other intellectual descendants of J. Edgar Hoover.

“The ALA code of ethics demands that librarians refuse to comply with FBI requests for public records. ... Librarians have an ethical duty to protect their patrons that trumps the legal issues confronting them. Period. If they are not prepared to uphold their own basic ethical principles of patron advocacy, then they should be prepared to reap the scorn and suspicion of scholars and other patrons.’’

After the controversy his essay stirred, Price said in an interview with the Weekly that he realizes few librarians may be willing to risk jail to protect patron privacy. But he also said, “If one person did that, you’d make the news. If 30 people did that ... you’d have a verifiable movement. We need a Rosa Parks of the librarians.’’

Price, who speaks Arabic and has lived in the Middle East, said he has theoretically grappled with what he would do if the FBI ever demanded his field notes. He said he’s bound to protect his sources — just as he expects librarians to protect their patrons. “We live in this increasingly repressive era where they [librarians] are being asked to ignore their ethical code,’’ he said. “I think it’s an outrage for the FBI to come and act like the thought police and look over my shoulder at what I’ve read. It’s none of their damn business, and librarians need to understand it’s wrong for the FBI to care about what I’m reading.’’

The ethical tug librarians and others feel is easy to understand: Protecting privacy is one thing, protecting lives another altogether. Most are trying to do both.

Barbara Rust, senior archivist at the National Archives facility in Fort Worth, tells people she feels like she’s working on the set of a Steven Spielberg movie.

“If you’ve seen Raiders of the Lost Ark where the actor is taking the wheelbarrow with the Ark of the Covenant into an anonymous government warehouse, we’re the anonymous government warehouse,’’ she said. The facility in South Fort Worth is three football fields long and home to thousands of boxes containing millions of pages of records. “It’s the proverbial needle in a haystack,’’ Rust said.

Archivists, she said, are reviewing sensitive material before allowing anyone to inspect records. “Some of the federal highway records might have some bridge drawings, which we would restrict, so somebody wouldn’t know where to place bombs to take down a bridge like over [Lake] Ray Hubbard,’’ she said. The agency also is careful to restrict records containing social security numbers so they don’t fall into the hands of identity thieves.

“If they really wanted to hit us hard, that’s a great place to do it. You could basically destroy the commercial activity of the United States. It could get to the point where commercial entities won’t trust credit cards or checks. Imagine having to go back to cash only.’’

Whether needed or not, experts say, the Patriot Act still requires law enforcement to obtain advance authorization before conducting a search — from a judge, a grand jury, or in some cases Department of Justice officials.

But the act lowers the standard agents must meet to obtain records, said Kelly, the UNT associate dean. First, it makes records that once were accessible only by grand jury subpoena now accessible by a court-ordered search. The distinction between the two is a matter of timing. A subpoena to appear at a future date with the records in question would give a library time to hire a lawyer and contest the request before a judge. A warrant, on the other hand, demands immediate compliance.

“You have to step back and comply’’ with a warrant, she said. “If you have a subpoena, you can turn it over to your lawyer.’’

The act also makes it easier for police or federal agents to obtain a warrant.

No longer must agents demonstrate “probable cause’’ that a crime has been committed. The new standard, she said, requires an officer to show there is reason to believe an individual is a member of a terrorist group or an agent of a foreign power.

“It’s not ‘probable cause’ any more. It’s the belief that you may be associated with terrorists or be an agent of a foreign power — not any evidence that you are, but the belief that you are.’’

A group of librarians, booksellers, and civil libertarians have tried to lift some of the secrecy surrounding the Patriot Act with a lawsuit seeking information from the government under the Freedom of Information Act.

That suit, filed in federal court in Washington, claims the Patriot Act can be used to “obtain circulation records from libraries, [get customer] purchase records from bookstores, academic records from universities, medical records from hospitals, or e-mail records from internet service provider’’ without any government agent ever having to demonstrate probable cause.

All the government has to do to obtain the records, the lawsuit contends, is assert that its request is for “an authorized investigation to protect against international terrorism or clandestine intelligence activities.’’

For someone who isn’t a lawyer, the distinction between demonstrating probable cause and asserting the need to investigate may not seem significant. But David Sobel, an attorney representing the Electronic Information Privacy center, one of the groups that filed the lawsuit, said the distinction is really the difference between the government our forefathers rebelled against and the one they founded.

“In order for the government to obtain personal information or to investigate a citizen’s activity, there needed to be some clear indication that a particular individual is engaged in illegal activity,” he said. “This is what has traditionally, historically prevented the government from conducting fishing expeditions.’’

But the Patriot Act, he said, virtually eliminates those safeguards. “Now the government could, for instance, go to a public library and not even have the name of a particular individual but instead say to the library, ‘We want the name of everybody who has checked out the following books.’ That’s a pretty clear distinction. ‘We want to know everyone who’s looked at this book or gone to a particular web site or bought a ticket to fly to a particular place.’

“It really turns our traditions on their head by no longer starting with specific suspicion but instead gathering a lot of personal information about a lot of people and deciding based on that who might be suspicious.’’

For example, he said, a terrorism investigation into a potential anthrax attack or an assault on a ship channel could lead investigators to gather the names of library patrons who have perfectly legitimate interests in crop dusting or scuba diving.

“I think there’s a high possibility of that, and that possibility is increasing now that all of this is done secretly. Not only can the FBI go to the library and get lists of everyone who checked out a particular book, but those people have no right to know the government has obtained that information.”

“Our system was established by people who had legitimate reason to be wary of that kind of government power,” he said. Before the American Revolution, “the British were conducting what were known as general searches. They would go into any place and look for whatever they wanted without any specification. That’s a large part of why we had a revolution and that this society has considered itself to be distinctive. I don’t think that’s something we lightly want to give up.’’

Librarians, accustomed to the role of silent and ever-helpful public servants, struggle with their new role at the center of a debate over protecting privacy and defending against terrorism.

UNT’s Kelly said librarians agonize over the balance between professional ethics and protecting the public.

“Everyone is concerned about not doing the wrong thing,’’ she said. “What if you provide this information and it prevents something from happening? What if you don’t, and something does? How do you know you’re doing the right thing?’’

But there are other dangers as well. Duke, the Fort Worth public librarian, worries about the effect of snooping — not on the library, but on the country.

“Reading about illegal things is not illegal,’’ she said. “It’s our responsibility to protect people’s access to legally protected speech. ... If people can’t find the information they’re looking for without being afraid of someone knowing what you’re looking at or, even worse, accusing them of doing something, then democracy shuts down.’’

And that, of course, is just what the terrorists want.

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