April 3, 2002 - Recently Passed "Patriot Act" is Worrisome

The FBI wants to know what you're reading.

Of course, not you, personally. Probably.

But consider section 215 of the recently passed "Patriot Act." It authorizes the director of the Federal Bureau of Investigation or his designee to seek an order from a specialized federal court "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."

You may ask, couldn't a law enforcement agency, if it suspected you of committing some crime, request information about what you bought from a bookstore, or checked out from a library anyhow?

Yes. But until now, a bookstore or library had the opportunity to protest the warrant in court, arguing that the request was outrageous, or unnecessary, or too broad. But under the Patriot Act, "[n]o 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)." In other words, the law says you can't talk to anybody: not the press, not the American Civil Liberties Union, and some think, not even your own lawyer.

In more informal terms, this is known as a "gag order."

Moreover, Section 802 of the Patriot Act gives a definition of "domestic terrorism" that is a little worrisome. It includes "acts [that] appear to be intended to influence the policy of a government by intimidation or coercion." On the other hand, Section 215 says, "An investigation under this section shall not be conducted of a United States person solely upon the basis of activities protected by the first amendment to the Constitution of the United States."

Is writing or reading a book in which some violent act or potentially violent philosophy is described and tacitly approved "intended to influence the policy of a government?" Is the act of reading itself an act of intimidation or coercion? The problem can be summed up in the old question: "Who decides?" The Patriot Act makes that very clear: the government decides.

What happens if you (as a librarian or bookstore owner) disagree? The law not only requires you to comply anyhow, it forbids you from saying anything about it.

Naturally, no library or bookstore has any interest in aiding or abetting acts of terrorism. And September 11 proved that there are indeed people who would commit such crimes. I support our law enforcement agencies in their difficult task of ensuring public safety.

But let's be honest. It is unwise for any citizen to put too much BLIND trust in the performance of any government, particularly when it demands secrecy. There is simply too much evidence of abuse. As the recent spate of DNA investigations has demonstrated, duly appointed authorities have sentenced perfectly innocent people to death, have in fact murdered people who committed no crimes at all. The FBI itself has a history of overreaching constitutional boundaries, most notably under J. Edgar Hoover.

Closer to home, Denver police have requested purchase records from the Tattered Cover. They have also made lists and done background checks on all kinds of civic activists, including the Quakers.

In their wisdom, the Founders of this nation established a system of independent checks and balances. The sad truth of the human condition is that nobody can be trusted all of the time. Sometimes the legislative branch goes too far; sometimes the executive; sometimes the judicial; and sometimes, the agencies entrusted with law enforcement.

Outside of government, there are other kinds of checks and balances. The media may uncover abuse of power, and through public exposure and discussion, precipitate reform. If, that is, the media knows about those abuses.

Then there is the public library. A long cherished tenet of librarianship is "patron confidentiality." It states that your use of the library is private, a matter between you and the library only. You may read about communism without fear of being branded a communist. You may read mysteries without being rounded up as a potential murderer. You may read about the abuse of governmental power without being jailed for treason.

I believe that in the utterly misnamed Patriot Act, this core premise of librarianship is under direct attack by the federal government.

Am I just being alarmist? How many libraries have actually been forced to fork over user records?

According to a recent article by civil libertarian Nat Hentoff, as of March 25, 2002, nervous informants have revealed that the FBI has conducted at least three "visitations." To public libraries? Bookstores? Were the requests justified?

We don't know. It's against the law to say. And there's the rub.