The following editorial appeared in the January 12, 2004, edition of Colorado's Rocky Mountain News.
Amend Patriot Act to Protect Libraries
Federal agents aren't likely to go snooping through vast numbers of library or bookstore records in an unfocused pursuit of terrorists, even though the Patriot Act apparently permits it. But we don't fault members of the Boulder Library Commission for being concerned about the possibility, and for asking the City Council to pass a resolution recommending that Congress limit how the Patriot Act powers can be used.
Indeed, Congress might well consider adopting a policy more like Colorado's.
Before Joyce Meskis, owner of the Tattered Cover bookstores in Denver, decided to resist a subpoena for customer records and a search warrant connected to a methamphetamine case, it was unclear whether bookstores had a First Amendment right to refuse to comply.
In 2002, the Colorado Supreme Court ruled unanimously that booksellers have a right to appear at a court hearing before any such warrant is issued. The judge may still decide a warrant is justified, in which case the bookstore is required to turn over its records. But the judge is required to balance law enforcement's needs against book buyers' right to privacy.
We remind you of this landmark case because it is relevant to a national controversy over section 215 of the Patriot Act. This section generally extends the provisions of the 1978 Foreign Intelligence Surveillance Act so that federal officials can obtain a court order allowing them access to "any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities."
If the records sought are, for example, flight school enrollments, most people will acknowledge the need for such authority. After all, police investigating a crime can generally get a subpoena for records they believe they need, and making it harder to investigate terrorism than other crimes surely makes no sense.
However, demanding the records of bookstores and libraries has First Amendment implications that subpoenaing records of the purchase of large quantities of fertilizer or methamphetamine precursors does not. The Patriot Act should be amended so the standard for obtaining bookstore and library records is higher than for other sorts of businesses. Not insurmountably high, because if members of a terrorist cell were communicating with their leader through e-mail on library computers, it should be possible to get authority to intercept their messages. But certainly high enough to prevent generalized snooping into what books people buy or read.
Even so, whether the librarian or the bookseller should have the opportunity for a hearing, as is true in Colorado now, is debatable. After all, the stakes could be much higher in a terrorism probe than in an ordinary criminal case.
The Patriot Act is scheduled to sunset in 2005, but a number of measures have already been introduced in Congress to amend it before then. Some of them deal with libraries and bookstores, though the details differ.
Even though U.S. Attorney General John Ashcroft has said that Section 215 has never been used, Congress should ensure that it is not misused.
Reprinted with permission of the Rocky Mountain News.