By Chris Finan, ABFFE President
There were no booksellers or librarians singing "Happy Birthday" when the USA Patriot Act celebrated its first anniversary on October 26. Concern about the potential chilling effect on free speech of some of the provisions of the law has grown sharply over the last 12 months.
A year ago, we were all reeling from the shock of the World Trade Center attack. The American Booksellers Foundation for Free Expression (ABFFE) was hit particularly hard because our office on Fulton Street is a few blocks from where the World Trade Center stood. While none of us was hurt, we were unable to return to Fulton Street for over a month. In the meantime, we worked from my home in Brooklyn where we attempted to do what we could to save Banned Books Week, which was in danger of being forgotten entirely.
Of course, we were aware that the Bush administration had introduced legislation giving the government expanded authority to fight terrorism. We heard that its title was an acronym -- "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism." But we didn't know what it contained until it was too late to protest.
Not too many people in Congress knew much about it either. It was a long and complex bill. Nevertheless, the Senate approved it without hearings and without a "markup" session, where changes are normally considered. There were some changes at a markup in the House, but the administration refused to accept them and accused House members of jeopardizing national security. The House leadership endorsed virtually the same bill that had passed the Senate. In the end, only one Senator, Russell Feingold of Wisconsin, and 66 members of the House voted against the Patriot Act. The bill became law in just six weeks, nearly record time.
Consequently, many of us who get paid as government watchdogs were surprised to learn that the Patriot Act contained a provision, Section 215, that authorized the FBI to secretly obtain a court order for bookstore and library records from a special "spy" court created by a 1978 law, the Foreign Intelligence Surveillance Act (FISA).
That the FBI could obtain a court order secretly was disturbing, but there were other troubling features of the new law. Under normal criminal procedure, the target of the warrant must be someone suspected of criminal conduct. The Patriot Act allows the FBI to search any records it believes may contain information relating to a foreign intelligence investigation, including records of people who are not suspected of any crime, much less terrorism. The Patriot Act also gags any bookseller or librarian, forbidding them to reveal that they have received a court order.
On November 1, less than a week after President Bush signed the Patriot Act into law, ABFFE sent a letter to all ABA members explaining the provisions of Section 215 and expressing concern over the potential for an abuse of the broad power to search bookstore records. We also voiced our concern that the gag order might frighten booksellers into turning over records without first seeking legal advice. It is our view that booksellers retain the right to seek counsel, and we have offered to put anyone who calls us in touch with a lawyer. (To see our November 1 letter, click here.)
When they first learned about Section 215, some booksellers said they would cooperate if the FBI asked them for records. Their reaction was understandable. In the rush of emotion that followed September 11, everyone wanted to contribute to the fight against terrorism.
However, over the past four and a half years, booksellers have learned that there are reasons to think twice before turning over customers' purchase records to the police. As a result of such high-profile cases as Kenneth Starr's subpoena of Monica Lewinsky's book purchase records and the fight against the search warrant issued to the Tattered Cover Book Store, booksellers have become aware that threats to the privacy of their records have a chilling effect on their customers' First Amendment right to buy the books they want and need.
There are a number of indications that booksellers are increasingly concerned about the impact of the Patriot Act:
- Both the New England Booksellers Association and the Southern California Booksellers Association asked ABFFE to organize programs at their fall trade shows that would include a discussion of the Patriot Act. The panels were among the best-attended events at both shows, and attendees asked many searching questions about the effect of the new law;
- A letter is now being circulated among Vermont booksellers and librarians urging the members of the state's legislative delegation to repeal Section 215 (To see the Vermont letter, click here.);
- On November 3, ABFFE participated in a Patriot Act program organized by Jim Harris, the owner of Prairie Lights Books in Iowa City, the home of the University of Iowa. The program, which featured remarks by me, by the head of the local library, and by a UI law professor, drew a good crowd on a Saturday afternoon, and planning is underway for a teach-in on the Patriot Act.
ABFFE is continuing to express its concerns about Section 215. To date, no bookseller has contacted us to request legal assistance in connection with a court order issued under the Patriot Act. However, because of the gag provision, we cannot be sure that there have not been any.
Consequently, in August, ABFFE joined the ACLU and the Electronic Privacy Information Center in filing a request under the Freedom of Information Act (FOIA) that seeks to determine how many court orders for documents have been issued to bookstores, libraries, and newspapers. When we did not receive a reply to our request within the time specified by FOIA, we filed a lawsuit in October in an effort to get the courts to help us obtain this information. The Freedom to Read Foundation, which represents librarians, is also a plaintiff.
Clearly, there is a growing awareness of the potential danger of the Patriot Act among booksellers and librarians. However, the public is largely ignorant of the threat. In April, ABFFE helped organize a press conference in Washington to draw attention to its concerns. Although Senator Feingold and the late Representative Patsy Mink of Hawaii participated, the press conference succeeded in attracting only a handful of reporters. Press attention has grown since. Only yesterday, NPR's All Things Considered presented a story on our lawsuit against the Justice Department (Click here for the story.) ABFFE hopes to build public support for changes in the Patriot Act by preparing material that booksellers can distribute to their customers.
Our goal is to persuade Congress either to repeal Section 215 or to make substantial changes in it. At the very least, we hope to lay the groundwork for a campaign to prevent the reenactment of Section 215 in 2005 when it is due to expire.
Open Letter to Vermont's Congressional Delegation
We, the undersigned librarians and booksellers, implore Senators Leahy and Jeffords and Congressman Sanders to introduce legislation to eliminate provisions in the USA Patriot Act that undermine Americans' Constitutionally guaranteed right to read and access information without governmental intrusion or interference. The Act -- passed with virtually no Congressional debate -- gives law enforcement officials broad authority to demand that libraries or booksellers turn over books, records, papers, and documents -- in fact "any tangible things." The government, for example, can subpoena records of books that individuals have borrowed or purchased, as well as the establishment's computer hard drives. And the bookseller or librarian is prohibited from telling anyone that an investigation is underway.
We understand the need for sufficient government authority to protect Americans from real danger of terrorist acts. But these new provisions are unnecessary. Even before the passage of the USA Patriot Act, laws already existed, giving law enforcement ample power to use warrants, subpoenas, or wiretaps to obtain confidential information about individuals, including the records of books purchased or borrowed by someone suspected of committing a crime. The important difference is that these laws conformed to the Constitution. Access to Americans' private lives required probable cause and was subject to judicial oversight. However, the Patriot Act has stripped away important safeguards of First Amendment rights:
- The FBI can search the records of anyone who may have information relative to a foreign intelligence investigation, including people who are not suspected of committing a crime; before the Patriot Act, it needed "probable cause" to believe the person had engaged in criminal conduct;
- While subpoenas for bookstore and library records are normally the subject of a hearing during which the impact of the proposed order on First Amendment rights is weighed, under the Patriot Act, the FBI requests a warrant secretly from the special court set up under the Foreign Intelligence Surveillance Act (FISA); it has been reported that almost all of these requests are granted;
- The bookseller or librarian who receives a FISA order is forbidden to reveal its existence to anyone else, including civil liberties groups that are attempting to insure that the broad powers granted under the Patriot Act are not being abused.
The freedom to read is one of the cornerstones of democracy. Our professions are founded on principles that encourage the free expression of ideas and the right of a citizenry to access those ideas free of censorship, violations of privacy, or the threat of governmental intrusion. We consider ourselves frontline defenders of the First Amendment.
It is especially crucial for a free society to remain vigilant against threats to its liberties during periods of national stress and crisis, when those liberties are most at risk. We do not have to reach back far to know that our concerns are not abstract. Internments of Japanese-Americans during World War II, the destruction of innocent lives during McCarthy's anti-Communist crusade -- lawmakers at the time considered these policies to be rational, reasonable responses to perceived threats. Now, of course, those moments are shameful to us.
Let us do what is right so that Americans will look back at this time with pride, rather than shame.
These provisions of the USA Patriot Act do not protect us from terrorism. Rather, they cast a wide net of suspicion and surveillance over the community of readers, researchers, and information-seekers. They are dangerous steps toward the erosion of our most fundamental civil liberties. Please present your colleagues in Congress with a bill to repeal these provisions now.
We thank you on behalf of all who treasure the right to read, speak, and think as free Americans under our Constitution.