USA Patriot Act

1
USA Patriot Act Intellectual Freedom

• Carrie Lybecker
• Liza Rognas
• Carlos Diaz
• The Evergreen State College
• February 28, 2003

2
Patriot History

• September 11, 2001
• September 12 Ashcroft instructed staff to draft
  broad authorities
• Civil libertarians gathered the wagons
• September 13 Senate precursor bill adopted
• September 19 Congressional, White House and
  Justice leaders exchanged proposals
• Patriot enacted October 26, 2001

3
Immediate Opposition

• ACLU, Electronic Privacy Information Center,
  Center for Democracy and Technology, American
  Association of Law Libraries, the American
  Library Association, Association of Research
  Libraries, Amnesty International, Human Rights
  Watch, Physicians for Human Rights, Women's
  International League for Peace and Freedom

4
USA Patriot Act

• Uniting and Strengthening America by Providing
  Appropriate Tools Required to Intercept and
  Obstruct Terrorism Act of 2001
• Public Law 107-56
• H.R. 3162

5
Patriot Summary

• Circumvents 4th Amendment probable cause
  requirement and protections of privacy
• Vastly increases surveillance and search and
  seizure powers
• Allows extensive information sharing among
  agencies
• Minimizes or eliminates judicial and
  congressional oversight and accountability
• Increases government secrecy

6
Intellectual Freedom A Library Value

• Intellectual freedom is the right of every
  individual to both seek and receive information
  from all points of view without restriction. It
  provides for free access to all expressions of
  ideas through which any and all sides of a
  question, cause or movement may be
  explored.American Library Association, Office
  for Intellectual Freedom

7
Intellectual Freedom A Library Value

• Intellectual freedom is the basis for our
  democratic system. We expect our people to be
  self-governors. But to do so responsibly, our
  citizenry must be well-informed. Libraries
  provide the ideas and information, in a variety
  of formats, to allow people to inform
  themselves.American Library Association, Office
  for Intellectual Freedom

8
Privacy A Library Value

• The right to privacy is the right to open inquiry
  without having the subject of ones interest
  examined or scrutinized by others
• Privacy is essential to the exercise of free
  speech, free thought, and free association, and

9
Privacy A Library Value

• Protecting user privacy and confidentiality has
  long been an integral part of the mission of
  libraries.Privacy An Interpretation of the
  Library Bill of Rights, American Library
  Association

10
Historical Precedents Libraries

• 1939 Library Bill of Rights
• 1947 HUAC accused LOC of harboring aliens
• 1948 ALA opposed loyalty oaths
• 1953 McCarthy attacked overseas library
  collections, books burned
• 1953 ALA Freedom to Read

11
Library Awareness Program 1960s-1980s

• FBI infiltrated libraries across nation and
  attempted to enlist librarians in the
  surveillance and reporting of the library
  activities of foreigners, including divulging
  their names, reading habits, materials checked
  out, and their questions to reference librarians.

12
Library Awareness Program 1960s-1980s

• The agents told librarians that they should
  report to the FBI anyone with a foreign sounding
  name or foreign sounding accent.Librarian
  Herbert Foerstel (University of Maryland, author
  of Surveillance in the Stacks The FBI's Library
  Awareness Program)

13
Library Awareness Program 1960s-1980s

• Jaia Barrett of the Association of Research
  Libraries wondered Whats the next step?
  Classifying road maps because they show where
  bridges are for terrorists to blow up?Natalie
  Robbins, The FBIs Invasion of Libraries, The
  Nation April 09, 1988

14
History 1970s

• Treasury visited libraries demanding patron
  records
• ALA published Policy on Confidentiality of
  Library Records and Policy on Government
  Intimidation

15
History 1970s

• ALA denounced government use of informers,
  electronic surveillance, grand juries,
  indictments, and spying in libraries, asserting
  no librarian would lend himself to a role as
  informant, whether of voluntarily revealing
  circulation records or identifying patrons and
  their reading habits

16
Intellectual Freedom A Basic Human Right

• Everyone has the right to freedom of opinion and
  expression this right includes freedom to hold
  opinions without interference and to seek,
  receive and impart information and ideas through
  any media and regardless of frontiers.Article
  19, Universal Declaration of Human Rights

17
Intellectual Freedom A Civil Right

• First Amendment religion, speech, press,
  petition, assembly
• Fourth Amendment privacy, probable cause
• Fifth Amendment due process of law

18
Fourth Amendment

• The right of the people to be secure in their
  persons, houses, papers, and effects, against
  unreasonable searches and seizures, shall not be
  violated, and no Warrants shall issue, but upon
  probable cause, supported by Oath or affirmation,
  and particularly describing the place to be
  searched, and the persons or things to be seized

19
Probable Cause

• A reasonable ground to suspect that a person has
  committed or is committing a crime or that a
  place contains specific items connected with a
  crime the facts must be such as would warrant a
  belief by a reasonable man
• Major distinction between criminal and
  intelligence investigations

20
Criminal vs. Intelligence Investigations

• Criminal investigations must adhere to
  constitutional requirements regarding privacy,
  probable cause, and due process
• Intelligence gathering relied on lesser
  standards, i.e. did not require probable cause,
  as information sought was for intelligence
  purposes only, not for use in criminal
  investigations

21
Criminal Intelligence Investigations

• Patriot blurs or eliminates the distinction
  between the two, allows gathering of evidence for
  criminal investigations through the secretive
  intelligence process which does not require
  probable cause as it was intended to gather data
  about foreign agents

22
History 1950s-1970s

• FBI maintained campaign of surveillance,
  disinformation, and disruption targeting Dr.
  Martin Luther King, Jr., Amnesty International,
  ACLU, antiwar and womens rights groups and at
  the University of California, the Free Speech
  Movement, students, professors, and
  administrators at UC Berkeley.

23
History 1950s-1970s

• CIA, by law restricted to intelligence activities
  outside US and excluding US persons, illegally
  spied on 7,000 Americans, sharing information
  with FBI
• FBI initiated files on over 1 million Americans,
  without a single resulting conviction

24
History 1970s

• Senate Church Committee, 1975-1976, documented
  FBI and CIA abuses in 13 published volumes
• Enacted FISA, the Foreign Intelligence
  Surveillance Act of 1978 to safeguard
  constitutional rights

25
FISA Purpose

• Define FBI domestic surveillance activities
  relative to collection of foreign intelligence
  information
• Provide judicial and congressional oversight
• Prevent political spying and infringement on
  constitutional rights

26
FISA Prior to Patriot

• Seven member secret court appointed by Supreme
  Court to approve applications for
  intelligence-gathering
• Operates in secret, proceedings are secret,
  surveillance is secret, results are secret
• FBI was required to attest (without probable
  cause) that the primary purpose of the
  investigation was collection of foreign
  intelligence information

27
FISA Prior to Patriot

• Courts role was largely to verify that required
  documents had been submitted and were in order
• In 20 year history, court denied one out of more
  than 10,000 requests

28
FISA Prior to Patriot

• FBI required to identify location, devices,
  information sought, means of acquisition,
  duration
• FBI prohibited from sharing acquired information
  with other law enforcement agencies unless
  approved by Attorney General (the wall)
• Surveilled person not notified

29
FISA After Patriot

• Patriot vastly broadens who may be surveilled, in
  what manner, and what information may be
  collected
• Allows or mandates information sharing among
  agencies
• Decreases congressional and judicial oversight

30
Patriot Libraries

• Section 203 Information Sharing
• Section 206 Roving Wiretaps
• Section 213 Sneak Peek
• Section 214 Pen/Trap-FISA
• Section 215 Records
• Section 216 Pen/Trap-Criminal
• Section 218 Foreign Intelligence Info

31
Section 214 Pen/Trap (FISA)

• Section 214 pertains to electronic surveillance,
  Pen/Trap acquisition of electronic information in
  intelligence investigations

32
Section 214 Pen/Trap

• A pen register is a device that captures phone
  numbers dialed, Internet addressing information
  such as email addresses, URLs accessed, search
  strings initiated
• A trap and trace device identifies the origin of
  incoming phone calls or email (electronic
  signaling)

33
Section 214 Pen/Trap (FISA)

• Previously, government required to certify that
  it had reason to believe that the surveillance
  was being conducted on a line or device used by
  someone or a foreign power or agent involved with
  international terrorism or intelligence
  activities that violate US criminal laws

34
Section 214 Pen/Trap (FISA)

• Now, need only assert that the information likely
  to be obtained is either foreign intelligence
  information about a non US person, or relevant to
  an ongoing investigation to collect foreign
  intelligence information or to protect against
  international terrorism or clandestine
  intelligence activities,

35
Section 214 Pen/Trap (FISA)

• 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

36
Section 203a Foreign Intelligence Information

• Information concerning a US person, that relates
  to the ability of the United States to protect
  against attack, grave hostile acts, sabotage,
  international terrorism, or clandestine
  intelligence activities by a foreign power or its
  agent or

37
Section 203a Foreign Intelligence Information

• information, whether or not concerning a United
  States person, with respect to a foreign power or
  territory that relates to the national defense or
  the security of the United States, or the conduct
  of the foreign affairs of the United States."

38
Foreign Power

• Foreign power includes
• Foreign governments
• Entity controlled by foreign government
• A foreign-based political organization, not
  substantially composed of United States persons
  (50USC1801)
• Examples Amnesty International, International
  Red Cross, CISPES

39
Section 214 Pen/Trap (FISA)

• International terrorism includes activities that
  appear to be intended to intimidate or coerce a
  civilian population or to influence the policy
  of a government by intimidation or coercion

40
Section 203 Information Sharing

• Any investigative or law enforcement officer, or
  attorney for the Government who has obtained
  knowledge of the contents of any wire, oral, or
  electronic communication, or evidence derived
  therefrom, may disclose such contents to any
  other Federal law enforcement, intelligence,
  protective, immigration, national defense, or
  national security official to the extent that
  such contents include foreign intelligence or
  counterintelligence information

41
Section 214 Pen/Trap (FISA)

• The person/entity surveilled need not be
  suspected of terrorism or any crime
• The specific person or communications device or
  network need not be specified
• The order includes a gag clause the person
  served may not disclose its existence

42
Section 218 Foreign Intelligence

• Previously required to assert that the purpose
  of the surveillance is to obtain foreign
  intelligence information
• Revised to a significant purpose of the
  surveillance is to obtain foreign intelligence
  information

43
FISC Opinion

• In August 2002, FISC took the unprecedented step
  of releasing, for the first time in its history,
  an opinion regarding the conduct of the Justice
  Department

44
FISC Opinion

• Attorney General asserted that FISA may be used
  primarily for a law enforcement purpose, and
• Proposed rules that would allow criminal
  prosecutors to direct and control intelligence
  investigations, that is, to use the secret FISA
  process to collect evidence for criminal cases

45
FISC Opinion

• This may be because the government is unable to
  meet the substantive requirements of law
  applicable to criminal investigation, and

46
FISC Opinion

• Means that criminal prosecutors will tell the
  FBI when to use FISA (perhaps when they lack
  probable cause), what techniques to use, what
  information to look for, what information to keep
  as evidence and when use of FISA can cease
  because there is enough evidence to arrest and
  prosecute

47
FISC Opinion

• Court revealed its 2000 discovery that FBI had
  lied in 75 FISA surveillance applications and was
  illegally mixing intelligence and criminal
  investigations
• In March 2001, government reported similar
  misstatements in another series of FISA
  applications

48
FISC Opinion

• The Court found that most of the FBIs illegal
  activities violating court orders involved
  information sharing and unauthorized
  disseminations to criminal investigators and
  prosecutors. How misrepresentations on
  surveillance applications occurred remained
  unexplained to the Court, almost two years after
  they were first discovered.

49
FISC Opinion

• The court ruled against Ashcroft and ordered the
  DOJ to retain separation between criminal and
  intelligence investigations
• The DOJ appealed to the FISA Court of Review
  (FISCR)

50
FISCR Opinion

• The FISCR convened for the first time and issued
  an opinion reversing FISC decision, citing
  Patriots Sec. 218 language change from the
  purpose to a significant purpose, and also
  citing the explicit support for that language by
  several Senators during Patriot deliberations
  Democrats Leahy, Edwards, and Feinstein

51
Result

• The FISA process for approving electronic
  surveillance as well as search and seizure may be
  used, without probable cause, to obtain evidence
  for criminal prosecution
• For FISCR decisions, there apparently is no
  recourse to the US Supreme Court

52
Electronic Surveillance Carnivore

• Carnivore is a system of software and hardware
  that captures electronic communications over a
  network

53
Carnivore

• Its existence was discovered in April 2000 when
  ISP Earthlink testified before the House
  Judiciary Committee that the FBI was requiring it
  to install Carnivore on its network
• Congress held hearings and exchanged a series of
  letters with the FBI

54
Carnivore

• DOJ commissioned a study by IIT Research
  Institute and the Illinois Institute of
  Technology Chicago-Kent College of Law

55
Carnivore

• May be used in either pen mode, which records
  To and From email address and IP addresses, or
  full mode which captures the full content of
  communications, i.e. e-mail messages, HTTP pages
  (web browsing contents) , FTP sessions, commands
  and data, for instance, search strings initiated

56
Carnivore

• Switching between modes requires one mouse click
  to select a radio button
• Operator not identified and actions are not
  traceable
• Program does not maintain a record of its own
  activities
• It is impossible to trace the actions to
  specific individuals

57
Carnivore

• Carnivore can perform fine-tuned (surgical)
  searches
• It is also capable of broad sweeps. Incorrectly
  configured, Carnivore can record any traffic it
  monitors
• This is a recently declassified FBI schematic
  depiction of Carnivore

58
Carnivore
FBI
59
Carnivore
IIT Research Institute
60
Section 216 Carnivore

• Court authorizes installation of pen/trap devices
  anywhere in US whenever an attorney for
  government, or a State investigative or law
  enforcement officer certifies to court that that
  the information likely to be obtained by such
  installation and use is relevant to an ongoing
  criminal investigation

61
Section 216 Carnivore

• Pen/trap orders nationwide may now be authorized
  by courts located outside the communication
  providers geographic area, and the order neednt
  specify a geographic area
• Providers do not need to be specified

62
Section 216 Carnivore

• Gag clause the person owning or leasing the line
  to which the pen/trap device is attached, or who
  has been ordered by the court to provide
  assistance to the applicant, shall not disclose
  the existence of the pen/trap or the existence of
  the investigation to the listed subscriber, or to
  any other person, unless or until otherwise
  ordered by the court

63
Section 206 Roving Wiretaps

• Previously, court order had to identify the
  specific service, e.g. an ISP or phone company,
  through which surveillance would occur
• Sec 206 allows the interception of any
  communications made to or by an intelligence
  target without specifying the particular
  telephone line, computer or other facility to be
  monitored

64
Section 206 Roving Wiretaps

• Includes gag clauserecipient of order prohibited
  from disclosure

65
Section 206 Roving Wiretaps

• EPIC analysis Could have a significant impact
  on the privacy rights of large numbers of
  innocent users, particularly those who access the
  Internet through public facilities such as
  libraries, university computer labs and
  cybercafes. Upon the suspicion that an
  intelligence target might use such a facility,
  the FBI can now monitor all communications
  transmitted at the facility.

66
Section 213 Sneak Peek

• Authority for Delaying Notice of the Execution
  of a Warrant
• Eliminates prior requirement to provide a person
  subject to a search warrant or order with notice
  of the search
• With warrant or court order, may search for and
  seize any tangible property or communication,
  without prior notice

67
Section 215 Records

• Under FISA, an FBI official (as low in rank as
  Assistant Special Agent in Charge) may apply 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
  

68
Section 215 Records

• 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

69
Section 215 Records

• Judge is required to authorize the order if he
  finds that the application meets the
  requirements of this section
• The order may not disclose that it is issued for
  purposes of an intelligence or terrorism
  investigation

70
Section 215 Records

• Gag clause 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

71
Section 215 Records

• On a semiannual basis, the Attorney General must
  provide a report to the Permanent Select
  Committee on Intelligence of the House of
  Representatives and the Select Committee on
  Intelligence of the Senate specifying total
  number of applications, and number granted,
  modified, or denied during the preceding 6 months

72
Libraries Post 9/11

• Sept 2001 UCLA library employee suspended for
  posting email critical of US foreign policy
• Sept 2001 Florida librarian reported suspicious
  names to FBI, computer records seized
• Sept 2001 Broward County, Florida library
  director subpoenaed for patron information

73
Libraries Post 9/11

• October 2001 Fort Lauderdale and Coral Springs
  libraries in Florida visited by FBI
• Feb 2002 U. of Illinois Library Research Center
  surveyed 1,020 public libraries85 had received
  requests for patron information

74
Libraries Post 9/11

• July 2002 A St. Petersburg Times editorial
  reported that library staff of Edison Community
  College reported three Middle Eastern-looking
  men who were whispering while using library
  computers to look up Islamic newspapers.
  Computer hard drives were confiscated

75
Libraries Post 9/11

• June 2002 FBI sought information about a library
  patron from the Bridgeview Public Library in
  Chicago
• June 2002 Paterson, New Jersey Library Director
  Cindy Czesak revealed to the press, despite a gag
  order, that the FBI had visited there seeking
  patron information

76
Patriot in the Library Congress

• In a June 2002 letter to AG John Ashcroft, the
  House Judiciary Committee asked 50 questions
  about the implementation of Patriot, including in
  libraries and bookstores
• In its July 2002 reply, the Justice Department
  declined to answer questions impacting
  libraries/records, asserting that the information
  was classified

77
Patriot in the Library Congress

• October 2002 House Judiciary Chair Sensenbrenner
  issued a press release after reviewing classified
  data The Committees review of classified
  information related to FISA orders for tangible
  records, such as library records, has not given
  rise to any concern that the authority is being
  misused or abused.

78
Patriot in the Library Congress

• But as the ACLU noted in a subsequent lawsuit,
  He did not undertake to disclose those answers
  to the public.

79
Patriot in Libraries To the Courts

• The ACLU, Electronic Privacy Information Center,
  American Booksellers Foundation, and Freedom to
  Read Foundation filed suit against the Justice
  Department for records concerning implementation
  of Patriot in libraries and bookstores, after the
  Department of Justice failed to respond to
  Freedom of Information Act requests

80
Concluding Thoughts

• We dont know how Patriot has been used in
  libraries, and librarians cannot tell us without
  risking prosecution
• Librarians and the public have a right to know
  what information is being collected about
  Constitutionally-protected activities, and to
  expect government accountability

81
Concluding Thoughts

• Librarians have a rich professional history of
  promoting and protecting intellectual freedom
• We agree with the ALA The Patriot Act is a clear
  and present danger to intellectual freedom

82
Concluding Thoughts

• The ALA therefore urges all libraries to
• Educate their users, staff, and communities
• Defend and support privacy and open access to
  knowledge and information, and

83
Concluding Thoughts

• Adopt and implement patron privacy and record
  retention policies that affirm that the
  collection of personally identifiable information
  should only be a matter of routine or policy when
  necessary for the fulfillment of the mission of
  the library