by Nancy Kranich
Rutgers School of Communication and Information
Past President, American Library Association
Are librarians hysterical about protecting user privacy, as Attorney General John Ashcroft contended in 2003? That was the question asked when LIS students at Rutgers University heard from two librarians on the front lines defending and promoting intellectual freedom since the September 11th terrorist attacks in 2001. The colloquium entitled Libraries, Privacy, and National Security featured George Christian, the plaintiff in John Doe v. Gonzales who was served a National Security Letter (NSL) in 2005 that demanded patron records from the Library Connection in Connecticut, and Patrice McDermott, Executive Director of the coalition OpenTheGovernment.org, an organization that shines a light on surveillance transparency.
Both colloquium speakers were instrumental in changing the discourse and moving public opinion and policy toward more openness and privacy protection. They not only shared their stories, but addressed the central question: where do you draw the line in a democratic society between safety and freedom?
Attendees learned first hand from a librarian who just said NO to an FBI fishing expedition that demanded records about thousands of innocent readers using his busy library system. They listened to another librarian, a policy negotiator in Washington, who explained why librarians and library users should care about national security issues. Stated one student, “I thought it was interesting that both Christian and McDermott brought up privacy and security as ‘teachable moments.’ Christian discussed how librarians may assume the role of educating a library’s constituents about threats to privacy and Constitutional rights. McDermott referred to the NSA leaks, which created a new public awareness about these issues.”
Ever since the 9-11 attacks, librarians have raised concerns about policy makers’ reactions to the threats. Their concerns initially focused on the USA PATRIOT Act, passed by Congress with virtually no debate. That law, which includes several troubling provisions such as Section 215, grants unprecedented authority to law enforcement agencies to obtain search warrants from a secret court for business records (including educational, library, and bookstore records) without any actual proof or even reasonable suspicion of terrorist activity. Although the word library is not mentioned, this section is often referred to as the “library provision” thanks to the outcry over the possibility of library surveillance. That provision includes a gag order that requires any person or institution served with a warrant to keep secret what transpired. A similar provision, Section 505, permits the use of NSLs to force the instantaneous production of information about targets of investigations without any court order.
What’s the problem with these provisions? First and foremost, they license law enforcement officials to peer into Americans’ most private reading, research, and communications—rights granted under both the 1st Amendment and 4th amendment of the U.S. Constitution. They also sweep aside constitutional checks and balances, eliminate probable cause from terrorist investigations, increase potential for abuse, and break down barriers between criminal and intelligence gathering. In addition, they override existing privacy and confidentiality laws, including those in 48 states protecting library records.
In the John Doe v. Gonzales case, Christian (aka John Doe) described the FBI’s fishing expedition that chilled inquiry by innocent library users in his northern Connecticut library system. Moreover, a gag order imposed on Christian and his colleagues kept them from speaking out when debate about renewal of the USA PATRIOT Act denied that search warrants were issued to libraries. One student responded to Christian’s story, stating he is “truly a hero in the eyes of the library world and should be a hero in the eyes of the public. George stood up for all of our privacy rights.”
For more than a decade, ALA has passed resolutions urging Congress to amend the USA PATRIOT Act and related measures, launched the Campaign for Reader Privacy, and joined with other civil liberties groups like OpenTheGovernment.org to advocate reform. Unfortunately, attempts to modify the law have not yet resulted in substantive changes, even though a series of Amendments in 2006 limited impact on libraries thanks to the John Doe case.
During the Bush Administration, Americans learned about a related measure, a warrantless wiretapping program–legalized by Congress in 2008–that expanded powers to monitor domestic communications and listen to international phone calls without specific reasons. Then, in June 2013, Edward Snowden released highly classified information exposing the National Security Agency’s secret bulk collection of metadata about emails and phone calls made by Americans and the tapping of phones of foreign leaders. These measures have finally prompted a reluctant Congress and outraged public to join the “hysterical” library community in calling for change. Commented one MLIS student, “If librarians were worried in 2005, the whistle-blowing of Edward Snowden should be a wake-up call.”
McDermott described changes under consideration by Congress. One, the USA Freedom Act that ALA and other coalition partners have endorsed, would limit surveillance inquiries to a foreign power or agent actually suspected of terrorist activities, require a court order to search for records in bulk data, and create a special privacy advocate for the FISA court.
One Rutgers student, hearing about these developments for the first time, declared, “George Christian taught us a lot last night, he taught us that what he did was not the ordinary and that we need to be cautious of this ever happening to us. He let us know that the only way to succeed is to be educated and prepared. Patrice McDermott did an excellent follow up by making us aware of how unsecure the world is and that it is up to us to protect our privacy.” Stated another, “This colloquium was an excellent reminder that privacy is still a right and is worth defending, both for ourselves and for our patrons.” A third claimed, “there is so much more to libraries and librarians than meets the eye,” followed by another who affirmed, “This is a field that is growing in its involvement and purpose every day, and I am so excited to be a part of this.”
Nancy Kranich teaches at the Rutgers School of Communication and Information. She is a Past President of ALA, and, as a former Chair of the ALA Intellectual Freedom Committee, spearheaded the drafting of the original 2005 edition of the ALA’s Privacy Toolkit.
A video recording of the Rutgers MLIS Colloquium, “Libraries, Privacy, and National Security,” April 23, 2014, is available online , along with background lectures about libraries, privacy and national security prepared by Nancy Kranich (links below):
Today, the American Library Association is joining a nationwide day of action calling for reform of the Electronic Communications Privacy Act (ECPA), the law that says the government can access your email and documents in the cloud without a warrant.
ECPA is one of the Internet’s most outdated laws – it was enacted in 1986, before most people had access to a home computer or email. While the public has been rightfully outraged over reports that the NSA accesses communications without a warrant, ECPA says that hundreds of other government agencies—like the IRS, FBI, and DEA, as well as state and local law enforcement agencies—can access many of our stored emails, private social media messages, and documents in the cloud without getting a warrant from a judge. The law flies directly in the face of our Fourth Amendment values. (See the Digital Due Process website for a fuller explanation of the urgent need for ECPA reform.)
Bills to reform ECPA have gained huge support in recent months from both parties in Congress. However, legislation is now being blocked by a power grab from the Securities and Exchange Commission, which is pushing for a special carve-out for regulatory agencies to get your documents from online providers without a warrant. The SEC carve-out would neuter ECPA reform.
That’s why we’re calling on the White House to break its silence and stand up for ECPA reform. We need President Obama to tell the SEC to back down in its demands for troubling new powers and make clear that the time for ECPA reform is now.
Today we ask you join us by signing this petition to the White House. It’s time for the President to join hundreds of tech companies, startups, advocates, and Members of Congress by supporting this commonsense, long overdue reform to ensure our privacy rights online.
Americans for Tax Reform
American Library Association
Center for Democracy & Technology
Electronic Frontier Foundation
Fight for the Future
Internet Infrastructure Coalition
Open Technology Institute