Greetings.
This short report is in answer to your question: "Under the Patriot Act, how do government officials obtain information about a patron if the patron's record is cleared every time he/she returns material? Can they only search for materials currently checked out?"
The brief answer to this question is, yes. We purge records to protect the privacy of our patrons. Some libraries have been doing this for many years; even before the USA PATRIOT Act of 2001, there have been many attempts to obtain circulation records (the most notorious being those of Ted Kazcinski, the Unabomber.) If there are no records, there is nothing for the government to see.
However, I'd like to give you a more detailed answer. I was part of a group of librarians who helped pass a resolution against the USA PATRIOT Act in our city (Los Angeles) and I also am part of a more radical group that has informally agreed to resist the Act in practice; a stance that would likely get me fired and, if PATRIOT II becomes law, 5 years in the Federal pen. So I am hardly unbiased.
A rather amusing website posted by the Department of Justice, "Preserving Life and Liberty" (http://www.lifeandliberty.gov/), tries to "dispell the myths" about the PATRIOT Act. So, allow me to dispell their dispelling. For example, they state that they would not use the Act to prosecute a domestic group for terrorism if they stayed within their First Amendment rights. The example given was Greenpeace, a very poor example if I say so, since the DOJ *did* eventually prosecute Greenpeace using a very antiquated law. They are also being disingenuous about First Amendment rights, as anyone who's been to a large protest can attest. Whenever a gathering is declared illegal, the First Amendment rights of the participants has ended. Once a group (and again, if the example is Greenpeace, they often do) commits civil disobedience, they are not protected by the First Amendment in the eyes of the government, and there is no legal impediment to bringing the full force of the PATRIOT Act against them.
Regarding library records, the Department of Justice notes, correctly, that the FBI can access the records with a Grand Jury subpoena. This is how Ted Kaczynski's circulation records from the city library in Missoula, Montana, were eventually obtained by the FBI. But again, the DOJ is being disingenuous. First of all, a Grand Jury will only subpoena private records in criminal cases; a restriction that is not recognized by the PATRIOT Act. And second, the government can now ask for these records from the FISA court (and more about that later) without any public disclosure; in fact, such disclosure is prohibited. For example, in Whatcom County, Washington, the FBI obtained a Grand Jury subpoena to inspect circulation records. The library filed a motion to quash the subpoena on privacy grounds, and rather than fight in open court (somewhat suspiciously) the FBI withdrew the subpoena. Under the PATRIOT Act, there would be no grounds to quash; there would, in fact, be no knowledge of the request. (Zepeda 2004)
Most states do protect the privacy of library circulation records (although, please note, not in private libraries.) Here is the text of one California code:
§6254. Records Exempt from Disclosure Requirements
Except as provided in Sections 6254.7 and 6254.13, nothing in this chapter shall be construed to require disclosure of records that are any of the following:
<....>
(j) Library circulation records kept for the purpose of identifying the borrower of items available in libraries, and library and museum materials made or acquired and presented solely for reference or exhibition purposes. The exemption in this subdivision shall not apply to records of fines imposed on the borrowers.
The import of this California code is amplified a few sections on:
§6267. Registration and Circulation Records of Libraries Supported by Public Funds
All registration and circulation records of any library which is in whole or in part supported by public funds shall remain confidential and shall not be disclosed to any person, local agency, or state agency except as follows:
(a) By a person acting within the scope of his or her duties within the administration of the library.
(b) By a person authorized, in writing, by the individual to whom the records pertain, to inspect the records.
(c) By order of the appropriate superior court.
As used in this section, the term "registration records" includes any information which a library requires a patron to provide in order to become eligible to borrow books and other materials, and the term "circulation records" includes any information which identifies the patrons borrowing particular books and other material. This section shall not apply to statistical reports of registration and circulation nor to records of fines collected by the library. (Cal Gov Code 2003)
Notice that under California law, only a Superior Court can authorize opening library records. However, under the supremacy of Federal law (including the PATRIOT Act), the FBI can choose to ignore our state law if they wish.
Another major change by the PATRIOT Act regarding libraries substitutes the word "tangible things" for "records". While courts have usually interpreted most records as tangible, the Act takes no chances. By referring to "tangible things", they include books, sales records, receipts, memoranda, floppy disks, CD-ROMS, and most importantly the hard drive of a computer. As any hacker will tell you, it is very easy to recover erased files from a hard drive, including circulation records. The FBI certains knows it, if you read their own articles on the subject. (FBI 2000)
Therefore most libraries choose to purge their records. The Wisconsin Library Association put it succinctly, "Do you have a good reason to keep the records that you are keeping? If you don't, get rid of them." The ALA even advises "libraries to avoid creating unnecessary records and avoid retaining records past what's needed to run the library." "Some libraries across the nation have taken to shredding Internet sign-in sheets and clearing computer files daily. Some are posting warnings about federal surveillance." (Brinson 2003, Ishida 2003) The FBI cannot stop a library from purging their records (yet); a spokesman from the DOJ said "libraries were not breaking any federal law by destroying their circulation records under the misguided notion that the FBI is monitoring what people are reading. Nobody really cares. But, he said, libraries could be destroying records that grand juries have the right to subpoena as evidence for other crimes, such as child pornography." And that is disingenuous to the nth degree. (Sussman 2003)
As an aside, most bookstores are NOT destroying their records. Online bookstores, like Amazon.com, keep detailed lists of all your purchases. It's something to think about. (Foerstel 2004, 85)
Finally, just for fun (and knowledge, of course) let's look at the USA PATRIOT Act itself.
The USA PATRIOT Act (a long acronym that someone in high office undoubtedly took much pride in crafting; see the bibliography) is less a unified law than a long series of revisions to existing codes. Its length and organization might lead the suspicious to believe that the Act was prepared long before the terrible events of 11 September 2001, but that's a discussion better hashed out in other fora.
Although much of the USA PATRIOT Act is offensive to civil libertarians, the section of interest to librarians is 215. Like several other sections of the USA PATRIOT Act, section 215 (Access to Records and Other Items Under the Foreign Intelligence Surveillance Act) is a revision of parts of the Foreign Intelligence Surveillance Act, or FISA. FISA was created in 1978 to provide a mechanism for clandestine spying on foreign agents. Section 215 of the USA PATRIOT Act revised sections 501, 502 and 503 of FISA.
Here is the original section 501 of FISA:
[Laws in effect as of January 23, 2000]
[Document not affected by Public Laws enacted between January 23, 2000 and December 4, 2001]
[CITE: 50USC1861]
TITLE 50--WAR AND NATIONAL DEFENSE
CHAPTER 36--FOREIGN INTELLIGENCE SURVEILLANCE
SUBCHAPTER IV--ACCESS TO CERTAIN BUSINESS RECORDS FOR FOREIGN INTELLIGENCE PURPOSES
Sec. 1861. Definitions
As used in this subchapter:
(1) The terms "foreign power", "agent of a foreign power", "foreign intelligence information", "international terrorism", and "Attorney General" shall have the same meanings as in section 1801 of this title.
(2) The term "common carrier" means any person or entity transporting people or property by land, rail, water, or air for compensation.
(3) The term "physical storage facility" means any business or entity that provides space for the storage of goods or materials, or services related to the storage of goods or materials, to the public or any segment thereof.
(4) The term "public accommodation facility" means any inn, hotel, motel, or other establishment that provides lodging to transient guests.
(5) The term "vehicle rental facility" means any person or entity that provides vehicles for rent, lease, loan, or other similar use to the public or any segment thereof.
(Pub. L. 95-511, title V, Sec. 501, as added Pub. L. 105-272, title VI, Sec. 602, Oct. 20, 1998, 112 Stat. 2410.)
In the USA PATRIOT Act, this section disappears completely; in other words, the new section 501 is a revision of the old section 502, and the new section 502 is the old 503. There is no new section 503. So what happened to these definitions? They are elsewhere in the document, left to court reinterpretation, or (sinister music) they are no longer necessary, because this part of FISA no longer applies to just hotels, motels, storage facilities, airlines, car rentals and the entities defined here.
Let's move along. Here's the old section 502 of FISA, revised as section 501 (or 1862 in the US Code):
[Laws in effect as of January 23, 2000]
[Document not affected by Public Laws enacted between January 23, 2000 and December 4, 2001]
[CITE: 50USC1862]
TITLE 50--WAR AND NATIONAL DEFENSE
CHAPTER 36--FOREIGN INTELLIGENCE SURVEILLANCE
SUBCHAPTER IV--ACCESS TO CERTAIN BUSINESS RECORDS FOR FOREIGN INTELLIGENCE PURPOSES
Sec. 1862. Access to Certain Business Records for Foreign Intelligence and International Terrorism Investigations
(a) Application for Authorization
The Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order authorizing a common carrier, public accommodation facility, physical storage facility, or vehicle rental facility to release records in its possession for an investigation to gather foreign intelligence information or an investigation concerning international terrorism which investigation is being conducted by the Federal Bureau of Investigation under such guidelines as the Attorney General approves pursuant to Executive Order No. 12333, or a successor.
Here is the revision of subsection (a):
(a) Application for Authorization
(1) The Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application 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, 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.
(2) An investigation conducted under this section shall--(A) be conducted under guidelines approved by the Attorney General under Executive Order 12333 (or a successor order); and (B) 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.
No longer does FISA apply to car rental records and airline flights. It is expanded greatly to include "tangible things (including books, records, papers, documents, and other items)". It warms the heart to see two warnings regarding First Amendment rights. That restricts the FBI to investigating you only for acts NOT covered by the First Amendment.
This is the essential change in FISA, dramatically increasing the type and source of documents the FBI can access with application to the FISA (a special court created elsewhere in the Act to approve or deny FBI surveillance requests.)
Here is the next part of the original section:
(b) Recipient and Contents of Application
Each application under this section--
(1) shall be made to-- (A) a judge of the court established by section 1803(a) of this title; or (B) a United States Magistrate Judge under chapter 43 of title 28 who is publicly designated by the Chief Justice of the United States to have the power to hear applications and grant orders for the release of records under this section on behalf of a judge of that court; and...
The only change is to sub-paragraph (B):
(B) a United States Magistrate Judge under chapter 43 of title 28, United States Code, who is publicly designated by the Chief Justice of the United States to have the power to hear applications and grant orders for the production of tangible things under this section on behalf of a judge of that court; and...
...and again, simply changing "records" to "tangible things". The changes in sub-section (2) are more dramatic. Here is the original:
(2) shall specify that-- (A) the records concerned are sought for an investigation described in subsection (a) of this section; and (B) there are specific and articulable facts giving reason to believe that the person to whom the records pertain is a foreign power or an agent of a foreign power.
Here are the changes brought about by the USA PATRIOT Act:
(2) shall specify that the records concerned are sought for an authorized investigation conducted in accordance with subsection (a)(2) to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.
The original intent of FISA was to monitor "foreign powers" or their agents. Now the Act is changed, and becomes rather vague. An investigation can't concern a "United States" person, but it can involve clandestine activities or international terrorism. Are these mutually exclusive? That's for the Federal Government to know and you to find out. The FBI no longer has to provide evidence that you are the agent of a foreign power. In practice the FISA could now apply to anyone, even a US citizen, if they were connected to any activities conducted by someone outside the country. You don't even have to be the criminal or terrorist they're looking for; any connection could be enough to invoke the PATRIOT Act. (Chang 2002, 53)
Let's move along to subsection (c):
(c) Ex Parte Judicial Order of Approval
(1) Upon application made pursuant to this section, the judge shall enter an ex parte order as requested, or as modified, approving the release of records if the judge finds that the application satisfies the
requirements of this section.
(2) An order under this subsection shall not disclose that it is issued for purposes of an investigation described in subsection (a) of this section.
There was no change to this subsection. This is where the surveillance orders are kept under wraps; this was not a big deal in 1978, when it only applied to surveillance of foreign agents and the records of airlines and car rentals, but now that it could apply to anything and anyone, it's an issue for all of us to worry over.
And finally, subsection (d):
(d) Compliance; Nondisclosure
(1) Any common carrier, public accommodation facility, physical storage facility, or vehicle rental facility shall comply with an order under subsection (c) of this section.
(2) No common carrier, public accommodation facility, physical storage facility, or vehicle rental facility, or officer, employee, or agent thereof, shall disclose to any person (other than those officers, agents, or employees of such common carrier, public accommodation facility, physical storage facility, or vehicle rental facility necessary to fulfill the requirement to disclose information to the Federal Bureau of Investigation under this section) that the Federal Bureau of Investigation has sought or obtained records pursuant to an order under this section.
(Pub. L. 95-511, title V, Sec. 502, as added Pub. L. 105-272, title VI,
Sec. 602, Oct. 20, 1998, 112 Stat. 2411.)
References in Text
Executive Order No. 12333, referred to in subsec. (a), is set out as a note under section 401 of this title.
And the USA PATRIOT Act changes:
(d) Nondisclosure
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.
Since the FISA now applies to any tangible records, not just those of public storage facilities, etc., this subsection is much shorter. This is where the FBI originally was given the latitude to demand of the car rental or airline or storage company not to disclose the investigation. Now it applies to everyone. By the way, there is a citation to Executive Order 12,333 in the bibliography; this is the executive order (unchanged since the Reagan Administration) which lays out how, why and when intelligence is gathered by the CIA, FBI, etc. It is worth taking a look at.
The USA PATRIOT Act also added a new subsection:
(e) A person who, in good faith, produces tangible things under an order pursuant to this section shall not be liable to any other person for such production. Such production shall not be deemed to constitute a waiver of any privilege in any other proceeding or context.
How comforting. This frees you from liability if you're sued by someone whose records you turned over.
Here is the original Section 503 of FISA, and the revised Section 502 (or US Code 1863) of the USA PATRIOT Act:
[Laws in effect as of January 23, 2000]
[Document affected by Public Law 107-56 Section 215]
[CITE: 50USC1863]
TITLE 50--WAR AND NATIONAL DEFENSE
CHAPTER 36--FOREIGN INTELLIGENCE SURVEILLANCE
SUBCHAPTER IV--ACCESS TO CERTAIN BUSINESS RECORDS FOR FOREIGN INTELLIGENCE PURPOSES
Sec. 1863. Congressional oversight
(a) On a semiannual basis, the Attorney General shall fully inform the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate concerning all requests for records under this subchapter.
Here is the revision:
(a) On a semiannual basis, the Attorney General shall fully inform the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate concerning all requests for the production of tangible things under section 402.
The primary change, which is not trivial, again concerns the definition of "records" as opposed to "tangible things".
Let's go on...here again is the original FISA:
(b) On a semiannual basis, the Attorney General shall provide to the Committees on the Judiciary of the House of Representatives and the Senate a report setting forth with respect to the preceding 6-month
period--
(1) the total number of applications made for orders approving requests for records under this subchapter; and
(2) the total number of such orders either granted, modified, or denied.
(Pub. L. 95-511, title V, Sec. 503, as added Pub. L. 105-272, title VI, Sec. 602, Oct. 20, 1998, 112 Stat. 2412.)
The only change, this time, is in paragraph (1):
(1) the total number of applications made for orders approving requests for the production of tangible things under section 402; and...
Again there is the change from "records" to the larger group of "tangible things". By the way, these requests are rarely denied. In the 2003 report from the Department of Justice, 1727 applications for records were made to the FISA court. Of these, 1724 were approved. (USDOJ 2003) Let's hope that on 31 December 2005, we'll be drinking to the expiration of this entire section of the USA PATRIOT Act.
BIBLIOGRAPHY
Ball, Howard. The USA Patriot Act of 2001: Balancing Civil Liberties and National Security. Santa Barbara CA: ABC-CLIO, 2004.
Brinson, Claudia Smith. "Opinion: Law Defiles Sanctity of Libraries", The State, 24 September 2003. http://foi.missouri.edu/usapatriotact/oplawdefiles.html (28 December 2004)
California. Government Code, Chapter 3.5, "Inspection of Public Records", §6254, 6267. February 2003.
Chang, Nancy. Silencing Political Dissent. New York City: Seven Stories Press, 2002.
Electronic Privacy Information Center. "The USA Patriot Act", 1 November 2004. http://www.epic.org/privacy/terrorism/usapatriot/ (28 December 2004)
Foerstel, Herbert N. Refuge of a Scoundrel: The Patriot Act in Libraries. Westport CT: Libraries Unlimited, 2004.
Ishida, Tomoyuki. "Librarians worry about the impact of the Patriot Act", Journalism Students' Online News Service, 1 November 2003. http://jsons.collegepublisher.com/news/2003/11/01/Politics/Librarians.Worry.About.The.Impact.Of.The.Patriot.Act-549512.shtml (28 December 2004)
Lithwick, Dahlia, and Julia Turner. "A Guide to the Patriot Act", Slate, 8 September 2003. http://slate.msn.com/id/2087984/ (3 January 2005)
Safeguarding Our Patrons' Privacy: What Every Librarian Needs to Know About the USA PATRIOT Act & Related Anti-Terrorism Measures, December 11, 2002 [videorecording]. Washington DC: Association of Research Libraries, 2002
Sussman, Lawrence. "Some state libraries purging records: Actions follow warning on Patriot Act", Milwaukee Journal Sentinel, online edition, 6 October 2003. http://www.jsonline.com/news/state/oct03/175277.asp (28 December 2004)
United States. Congress. Foreign Intelligence Surveillance Act of 1978, 50 USC §1861 et seq.
United States. Congress. Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, Pub. L. No. 107-56, 115 Stat. 287-288.
United States. Department of Justice. "Preserving Life & Liberty." http://www.lifeandliberty.gov/ (28 December 2004)
United States. Department of Justice. "2003 Report on Applications to the FISA Court", 2003. http://www.epic.org/privacy/terrorism/fisa/2003_report.pdf (3 January 2005)
United States. Federal Bureau of Investigation. "Recovering and Examining
Computer Forensic Evidence", Forensic Science Communications, v. 2, n. 4, Oct. 2000. http://www.fbi.gov/hq/lab/fsc/backissu/oct2000/computer.htm (3 January 2005)
United States. Federal Bureau of Investigation. "Revised Standards of Section 215 Memo Regarding Use of FISA", 26 October 2001. http://www.epic.org/privacy/terrorism/usapatriot/foia/fbi_fisa_patriot.pdf (28 December 2004)
United States. Office of the President. Exec. Order No. 12,333, 46 Fed. Reg. 59941 (Dec. 4, 1981). http://www.cia.gov/cia/information/eo12333.html (3 January 2005)
Vanzi, Max. The PATRIOT Act, Other Post-9/11 Enforcement Powers and the Impact on California's Muslim Communities. Sacramento: California Senate Office of Research, 2004.
Zepeda, April. "Small Town Library Takes on the Feds", KOMO 4 News, 5 October 2004. http://www.komotv.com/stories/33363.htm (28 December 2004)(note: found at radicalreference.info)