Defending the Right Right to Read

April 24, 2003 -- -- A visit to the library hardly seems like an act that would get you in trouble, but some librarians are warning patrons that they could be putting themselves at risk by what they read.

At public libraries in Skokie, Ill., and Killington, Vt., for example, there are signs warning that the government could demand access to patrons' reading records and the library could not refuse.

At other libraries, such as in Santa Cruz, Calif., and Spokane, Wash., records of who checked out what books are being purged from computers as soon as books are returned, so if federal agents ask for information, there will simply be none to give.

Some booksellers, too, are purging their computer files of anything that could be used as evidence of what their customers are buying.

The threat, according to booksellers and librarians, comes from the federal government and a provision of the USA Patriot Act in Section 215 that authorizes the FBI to obtain "certain business records" based on warrants from secret Foreign Intelligence Surveillance Act courts, which under changes instituted by USA Patriot do not require that the government show probable cause.

The law, passed by Congress less than two months after the terror attacks of Sept. 11, 2001, also makes it illegal for a business — including libraries or bookstores — whose client records are demanded to tell anyone about it, even the person whose purchase or borrowing records are demanded.

Judith Krug of the American Library Association said the law not only threatens First Amendment rights, it undermines the ability of Americans to be responsible citizens by creating a sense of fear about seeking information the administration might not want them to have.

"It is in my mind the most important right we enjoy in the Constitution, because without the access to information we are incapable of governing ourselves," Krug said. "Without free access to information we do not have what we need to govern ourselves. Any attempt to withhold information and ideas from the American public strikes right at the heart of this Constitutional republic."

Formal Challenges

A bill has been introduced in the House of Representatives by Rep. Bernie Sanders, I-Vt., last month to exempt libraries and booksellers from the provisions of Section 215 of the Patriot Act. The bill has "about 70 co-sponsors, including a half-dozen Republicans," Sanders' chief of staff, Jeff Weaver said.

Under the bill, called the Freedom to Read Protection Act, bookstore and library records could still be sought by law enforcement, but only with evidence of probable cause.

"The Patriot Act basically amounts to a blank check for the FBI to receive the records of anybody they want to," Weaver said.

Though some booksellers have said they do not believe that the Justice Department sought the power to peruse Americans' reading records when USA Patriot was being drafted, Weaver said he was not so sure.

"It's difficult now to judge motivations, but the Justice Department has been quite hostile to attempts to change the law," he said. "Now that they have the powers, they don't seem to want to give them back."

Because of the secrecy provision of the law, no one outside the government knows how many times the powers have been used, if they have been used at all, to monitor the borrowing or book-buying records of any Americans, but several organizations have filed a Freedom of Information Act request with the Justice Department to try to find out.

Thus far, the answer that they have received has not satisfied them, though.

The Freedom to Read Foundation and the American Booksellers Foundation for Free Expression, with support from the American Civil Liberties Union and the Electronic Privacy Information Center, have filed suit accusing the Justice Department of stonewalling them on the FOIA request.

The FOIA request was filed in August 2002, seeking the number of times that federal agents sought to obtain library or bookstore records, though not asking for information about where, when or in what context — information that is considered vital to national security.

To date, though, all that has been provided are completely blacked out documents. Earlier this month, the ACLU filed a summary judgement motion in U.S. District Court in Washington, D.C.

"We're not asking for anything whose release could jeopardize national security," ACLU staff attorney Jameel Jaffer said.

A Justice Department spokeswoman declined to comment on the request because it was still being fought in the court.

In its most recent filing in the case, the Justice Department said it only withheld "a limited, minimal amount of information pursuant to well recognized exemptions of protecting classified national security information."

Contempt for Democracy?

Members of Congress from both parties, including Sen. Patrick Leahy, D-Vt., the former chairman of the Senate Judiciary Committee, and Rep. James Sensenbrenner, R-Wis., chairman of the House Judiciary Committee, have also criticized the Justice Department for not providing information about how USA Patriot is being implemented.

The Patriot Act has so-called "sunset provisions" that mean it would have to be reapproved by Congress in 2005, and according to the law the Justice Department is required to keep lawmakers informed about how it is using the powers that the law gives it.

Jaffer said he believes there is a pattern in the Justice Department's response to the FOIA request and its reticence with Congress.

"I think it shows a certain amount of contempt for the democratic process," Jaffer said. "It's just impossible for the public to make an informed decision."

Evidence in Books

Bookstore records have been sought in "a half dozen cases" not related to terrorism or the Patriot Act since 1998, when the Starr Commission investigating President Clinton subpoenaed Monica Lewinsky's book purchase records, ABFFE president Chris Finan said.

In a recently resolved case in Denver, the Tattered Cover Book Store fought a subpoena ordering it to turn over a customer's records in the case of a suspected drug dealer.

Police sought the records in March of 2000 because they found a mailing envelope from the bookstore to the suspect and two books on making methamphetamines outside an illegal meth lab. They hoped the store's records would prove the suspect bought the books.

The store's owner took the fight all the way to the Supreme Court, which ruled 9-0 last year that the Constitution protects an individual's right to be anonymous in book purchases.

Under the Patriot Act provisions, though, a person being investigated would not have a chance to challenge the examination of reading records, because the person would not know it was happening.