Pulling FBI’s Nose Out of Your Books
An unnecessary chill has descended on the nation’s libraries and bookstores: The books you buy and read are now subject to government inspection and review.
After 9/11, the Bush administration, particularly Atty. Gen. John Ashcroft, pushed hard for passage of the Patriot Act, which contained sweeping changes to our nation’s surveillance laws and new intelligence powers for the FBI and other agencies. At that time of national outrage, Congress passed with little debate a bill the attorney general had crafted.
Few who voted for the Patriot Act -- I did not -- knew that among its provisions was one that gave FBI agents the authority to engage in fishing expeditions to see what Americans read. Although it does not mention bookstores or libraries specifically, the sweeping legislation gives the FBI the power to seize all of the circulation, purchasing and other records of library users and bookstore customers on no stronger a claim than an FBI official’s statement that they are part of a terrorism investigation. Surely the powers the government needs to fight terrorism can be subject to more meaningful checks and balances than that, especially when the right to read without government intrusion is at stake.
Until the Patriot Act, the FBI had the authority to obtain bank records, credit records and certain other commercial records only upon some showing that the records requested related to a suspected member of a terrorist group. The Patriot Act expanded the FBI’s authority in two ways. First, it gave the FBI the authority to seize any records of any entity. Most members of Congress probably didn’t realize it, but this included libraries and bookstores. Second, Congress dropped the prior requirement that the FBI actually have some evidence that the person whose records it sought was a member of a terrorist group or otherwise involved in terrorism.
Now, one Patriot Act provision allows the FBI to obtain whole databases, including records of citizens not suspected of any wrongdoing. The FBI has a history of abusing its power: monitoring, keeping records on and infiltrating civil rights organizations, Vietnam War protest groups and others that had broken no laws but were considered controversial. Little has changed to prevent the FBI from abusing its powers again if it is left unchecked. The new powers appear to have been used already -- a University of Illinois survey shows libraries were targeted at least 175 times in the year after 9/11 -- yet the FBI refuses to explain how or why.
Such is the state of affairs that librarians in California and across the country are putting up signs warning patrons that the FBI may be snooping among their records. These librarians, along with booksellers, are particularly concerned because the proceeding for these warrants takes place in a closed court and the new law has a built-in gag order: Those who are asked to turn over records are not allowed to say that the search has occurred or that records were given to the government. In addition, under this provision the courts are no longer an arbiter of individual rights because judges are not allowed to determine whether there is probable cause to justify such sweeping searches.
We need law enforcement to track terrorists down before they do their evil deeds. But if we give up some of our most cherished freedoms -- the right to read what we want without surveillance; the need for “probable cause” before searches are made -- the terrorists win, for their attacks will have struck at the very heart of our constitutional rights.
To remedy the excesses of the Patriot Act that threaten our right to read, I have introduced the Freedom to Read Protection Act. The bill, which has the support of Democrats and Republicans, progressives and conservatives, will establish once again that libraries and bookstores are no place for fishing expeditions. Because this new legislation will allow the FBI to use the constitutional routes at its disposal, including criminal subpoenas, to get library and bookstore records, it will not tie the hands of investigators. At the same time it will require -- as had always been the case -- that investigations be focused and that the reasons behind them be subject to judicial scrutiny.
Before Congress begins any discussion of new powers for the FBI, as some in Washington are advocating, we must first focus on correcting the unchecked authority the Patriot Act already grants the government.