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Wednesday, June 22, 2005

Libraries, Privacy, and Law Enforcement

Books1 According to an NYT article:

Law enforcement officials have made at least 200 formal and informal inquiries to libraries for information on reading material and other internal matters since October 2001, according to a new study that adds grist to the growing debate in Congress over the government's counterterrorism powers.

In some cases, agents used subpoenas or other formal demands to obtain information like lists of users checking out a book on Osama bin Laden. Other requests were informal - and were sometimes turned down by librarians who chafed at the notion of turning over such material, said the American Library Association, which commissioned the study. . . .

The Bush administration says that while it is important for law enforcement officials to get information from libraries if needed in terrorism investigations, officials have yet to actually use their power under the Patriot Act to demand records from libraries or bookstores. . . .

The study does not directly answer how or whether the Patriot Act has been used to search libraries. The association said it decided it was constrained from asking direct questions on the law because of secrecy provisions that could make it a crime for a librarian to respond. Federal intelligence law bans those who receive certain types of demands for records from challenging the order or even telling anyone they have received it. . . .

The study, which surveyed 1,500 public libraries and 4,000 academic libraries, used anonymous responses to address legal concerns. A large majority of those who responded to the survey said they had not been contacted by any law enforcement agencies since October 2001, when the Patriot Act was passed.

But there were 137 formal requests or demands for information in that time, 49 from federal officials and the remainder from state or local investigators. Federal officials have sometimes used local investigators on joint terrorism task forces to conduct library inquiries. . . .

The study has not yet been released.  Here's the press release from the ALA's website.

This report makes me wonder about former Attorney General John Ashcroft's remarks a while back to counter criticism by the ALA over the Patriot Act.  According to a Washington Post article on Sept. 19, 2003:

"The charges of the hysterics," Ashcroft added, "are revealed for what they are: castles in the air built on misrepresentation; supported by unfounded fear; held aloft by hysteria."

The Justice Department escalated its attack on opponents of the USA Patriot Act yesterday, ridiculing criticism of the anti-terrorism law and accusing some lawmakers of ignoring classified reports that showed the government has never used its power to monitor individuals' records at bookstores and libraries. In an unusually sharp and at times sarcastic speech to police and prosecutors in Memphis, Attorney General John D. Ashcroft labeled critics of the law "hysterics" and said "charges of abuse of power are ghosts unsupported by fact or example."

"The fact is, with just 11,000 FBI agents and over a billion visitors to America's libraries each year, the Department of Justice has neither the staffing, the time nor the inclination to monitor the reading habits of Americans," he said. "No offense to the American Library Association, but we just don't care. . . .

While it might be true that the Patriot Act was not used to obtain library information, Ashcroft's contention that "we just don't care" doesn't seem to be true.  Government officials -- and apologists for greater security -- routinely argue that those concerned about privacy and civil liberties are overreacting.  Perhaps if the government were honest and forthcoming about the facts -- if it were to have a policy of providing the cold hard facts about what it is doing -- then people could properly evaluate the government's law enforcement endeavors.  But without the facts, with continual secrecy, with constant spin by Ashcroft and others, and with instances of broken promises by government agencies (see my recent TSA post), the government bares a lot of the blame for any "hysteria" and "overreaction."  And with the case of library records, the reality appears to be that in a number of cases, law enforcement authorites are interested in what some people are reading after all.   

Posted by Daniel Solove on June 22, 2005 at 03:03 AM in Daniel Solove, Information and Technology | Permalink

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"While it might be true that the Patriot Act was not used to obtain library information, Ashcroft's contention that "we just don't care" doesn't seem to be true."

This hits the mark. While those like Orin Kerr try to microanalyze governmental regulations that touch upon First Amendment areas, the general public (as well as librarians) are concerned with the overall picture. "Patriot Act" is somewhat representative of broader things besides moving the acceptability line over indirectly in various respects.

As with other matters, those like Ashcroft dismissively ignore reasonable worries and ultimately do so in rather counterproductive ways. And, just because some instance of governmental power doesn't technically arise from the Patriot Act, our concerns should not suddenly be dismissed as overblown. Anyway, these days if asked to decide who to trust, the ALA would often be chosen before the the Bush Justice Dept.

Posted by: Joe | Jun 22, 2005 9:26:21 PM

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