In the days and weeks that followed the attacks on New York City and Washington, DC, on September 11, 2001, fear was high that another attack was imminent. Notably, during this time the FBI was attempting to solve the mysterious appearance of anthrax-laden letters received by the offices of several news media and legislative figures. This atmosphere of fear led to what is considered by some to be the overly hasty passage of a piece of legislation that has helped to define the United States’ war on terrorism (Foerstel, 2008, preface). Though the legislation is commonly referred to by its acronym, its full title is “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001.” Considered to be “one of the longest, most complex, and most controversial bills ever passed by Congress” (Foerstel, 2008, p. 46), the act was signed into law by President George W. Bush six weeks after the terrorist attacks of September 11th.

The Patriot Act remains controversial a full seven years after its passage. Proponents say that “while safeguarding Americans’ civil liberties, this legislation also strengthens the U.S. Department of Justice (DOJ) so that it can better detect and disrupt terrorist threats, and it also gives law enforcement new tools to combat threats” (United States White House, 2008, para. 2). Opponents warn that it gives powers to the DOJ that can potentially be abused. Section 215 of the Patriot Act, in particular, has been referred to as the act’s “library provision” because “the library profession has anticipated its use to seize library records and has publicly warned of the abuse of such power” (Foerstel, 2008, p. 62).

Section 215 of the Patriot Act states, in part:

The Director of the Federal Bureau of Investigation . . . 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 . . . (Foerstel, 2008, p. 61).

Further, Section 215 states that:

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 . . . (Foerstel, 2008, p. 62).

The American Civil Liberties Union considers Section 215 to be unconstitutional because it:

  • Violates the Fourth Amendment, which says the government cannot conduct a search without obtaining a warrant and showing probable cause to believe that the person has committed or will commit a crime.
  • Violates the First Amendment’s guarantee of free speech by prohibiting the recipients of search orders from telling others about those orders, even where there is no real need for secrecy.
  • Violates the First Amendment by effectively authorizing the FBI to launch investigations of American citizens in part for exercising their freedom of speech.
  • Violates the Fourth Amendment by failing to provide notice – even after the fact – to persons whose privacy has been compromised. Notice is also a key element of due process, which is guaranteed by the Fifth Amendment (American Civil Liberties Union [ACLU], 2003).

Both the American Library Association and the ACLU consider this section of the legislation to be a “gag order” imposed upon the library and its personnel (ACLU, 2003 and McDermott, & Sheketoff, 2006). The gag order is understood to mean that once the library has turned over the requested information to the FBI it is prohibited from disclosing to anyone, including the subject of the investigation, the general public, or even to a member of Congress, that such a request had been made. The gag order is interpreted to be in effect indefinitely (Foerstel, 2008, p. 77), with violators being subject to severe penalties (Foerstel, 2008, p.170).

There have been a few challenges to Section 215 of the Patriot Act. Notably, the ACLU represented a small group of Connecticut librarians who filed suit anonymously because of the potential felony penalties. A federal judge ruled the gag order to be unconstitutional and lifted it. The government appealed the ruling, and the gag order continued to be in place throughout the appeal. During this time, Congress voted to reauthorize the Patriot Act in March of 2006. Once the reauthorization was complete, the government dropped its appeal. In effect, this legal maneuver succeeded in keeping the librarians from speaking to Congress while the reauthorization was under consideration (Foerstel, 2008, p. 176).

Questions for discussion:

Do you think Section 215 of the Patriot Act can be reconciled with the American Library Association’s Library Bill of Rights? Why or why not?

Some librarians have found creative ways to inform the public about FBI visits while still adhering to the law. One librarian reports at each monthly meeting of her library board that the library has not received any warrants under the Patriot Act. In this way, if there is ever a month that she does not make that report, the library board can infer that the opposite is true. What do you think about this librarian’s approach?

References

Foerstel, H. N. (2008). The Patriot Act: A documentary and reference guide. Westport, CT: Greenwood Press.

United States White House. USA Patriot Act. Retrieved 10/14/2008, from http://www.whitehouse.gov/infocus/patriotact/

American Civil Liberties Union. (2003). Surveillance under the USA PATRIOT Act. Retrieved October 14, 2008, from: http://www.aclu.org/safefree/general/17326res20030403.html

McDermott, P. & Sheketoff, E. (2006, February 10). The American Library Association expresses disappointment in USA PATRIOT Act compromise.[Press release]. Washington: American Library Association.