William Fisher

NEW YORK, Aug 29 2005 (IPS) — As the U.S. Congress prepares to vote on the final version of a reauthorised USA Patriot Act, a major civil rights group claims to have proof that the Federal Bureau of Investigation (FBI) has used the law to snoop into people’s library records – a charge the FBI has vigorously denied since the Act was passed in 2001.

But, because of another provision in the Act, the American Civil Liberties Union (ACLU) is under a “gag order” not to reveal details, and last week filed suit against the government for an emergency hearing to end the official silence.

The ACLU charged that the FBI has used the controversial Patriot Act power to demand records from an organisation – identified only as a member of the American Library Association – that possesses “a wide array of sensitive information about library patrons, including information about the reading materials borrowed by library patrons and about Internet usage by library patrons”.

“Our client wants to tell the American public about the dangers of allowing the FBI to demand library records without court approval,” said ACLU Associate Legal Director Ann Beeson, the lead lawyer in the case. “If our client could speak, he could explain why Congress should adopt additional safeguards that would limit Patriot Act powers.”

The FBI demand for records was made under the so-called National Security Letter (NSL) provision of the Patriot Act, which authorises the FBI to demand a range of personal records without court approval, such as the identity of a person who has visited a particular web site on a library computer, or who has engaged in anonymous speech on the Internet.

Once an NSL is issued to a person or an organisation, all parties are prohibited from revealing its existence.

A federal court has already ruled the NSL provision of the Act unconstitutional, but allowed the law to stand while the government is appealing the decision. The U.S. Court of Appeals was expected to hear the government’s appeal of that lawsuit this fall, but the government recently asked the court to delay the appeal while Congress debates reauthorisation of the Patriot Act. The court held that the NSL law violates the First and Fourth Amendments to the U.S. Constitution. The gag order abridges freedom of speech guaranteed under the First Amendment. The Fourth Amendment protects against unreasonable searches and seizures and searches without warrants.

Whether the Patriot Act has been used to obtain information about library patrons has been a flashpoint in the debate over the Act. The government has repeatedly dismissed the concerns of librarians that it could force them to violate their ethical responsibility to protect the privacy of library users.

Former Attorney-General John Ashcroft said that the NSL provision – part of the controversial Section 215 of the law – had never been used to search libraries. But an American Library Association report said that law enforcement officials have made at least 200 inquiries to libraries about reading materials and other internal matters since October 2001. In some cases, officers issued subpoenas; in others, they relied on informal requests.

Section 215, which expressly concerns libraries, and the national security letter provision of the Act, are broadly written, and civil libertarians are concerned that they invite law enforcement to overreach and demand the confidential records of people with no connection to terrorism.

Congress’s efforts to reauthorise the Patriot Act will continue when lawmakers return from their August recess. The House and Senate passed different versions of legislation before adjourning, and will meet in Conference Committee in September to reconcile their differences.

Of the two versions of the reauthorisation legislation, the Senate’s is more protective of privacy rights. Some of the provisions in the House version could make the law’s potential for excesses considerably worse, critics believe.

The ACLU said in its new lawsuit filed in Connecticut that the unnamed target of the NSL wishes to “participate in the public debate about the Patriot Act as Congress prepares to reauthorise or amend it”, but cannot do so because of the “heavy FBI gag order”.

Both the national ACLU and its Connecticut branch said they were forced to file the lawsuit initially under seal to avoid penalties for violating the gag provision, which they are challenging on First Amendment grounds. The court has set an emergency hearing for Aug. 31 on the ACLU’s request to lift the gag.

Defendants in the ACLU suit are Attorney-General Alberto Gonzales, FBI Director Robert Mueller, and an FBI official whose identity remains under seal.

Timothy H. Edgar, legislative counsel for the ACLU, told IPS, “Basic information that is crucial to oversight of the government’s new spy powers under the Patriot Act – such as how it is using new powers to obtain personal records – has been cloaked in secrecy, making it impossible to judge the effectiveness of these powers or their impact on civil liberties.”

The Patriot Act was hurriedly passed by Congress with virtually no debate five weeks after the terrorist attacks on the World Trade Center and the Pentagon on Sep. 11, 2001. The measure gave law enforcement sweeping new powers to investigate and prosecute terrorists and terror-related activities. Only one U.S. lawmaker, Sen. Russ Feingold, a Wisconsin Democrat, voted against it.

The reauthorisation of sections of the law is necessary because lawmakers required some provisions to “sunset” – expire – at the end of this year.

The process has triggered passionate arguments for and against. Attorney -General Gonzales and FBI Director Mueller have both demanded that the expiring provisions not only be made permanent, but have lobbied for expanded powers.

They are supported by most, though not all, Republicans and right-leaning advocacy groups.

But endorsement from the right is not universal. For example, a coalition of organisations led by former Congressman Bob Barr, a conservative Republican from Georgia, includes a number of powerful conservative groups concerned about the erosion of civil liberties in the effort to combat terrorism.

Nor are all critics of the law satisfied with the strength of the opposition. Prof. Ed Herman of the University of Pennsylvania, told IPS, “One striking thing is the little debate and indignation over these major encroachments on civil liberties, nothing like the indignation over (former president Bill) Clinton’s escapade or even his granting of pardons at the last minute of his term – actions that had nothing like the threatening consequences of these civil liberties attacks.”