A Report by PEN American Center: May 7, 2004
In September 2003, when book community concerns over section 215 of the USA PATRIOT Act were beginning to receive national attention, Attorney General John Ashcroft delivered a speech at the National Restaurant Association’s Annual Public Affairs Conference accusing librarians in particular of engaging in “breathless reports and baseless hysteria.” PEN protested both the tone and substance of the speech, calling the Attorney General’s remarks “at best disingenuous, given the Justice Department’s refusal to enter into a public discussion of how the law has been applied since it was passed.” Concerns over the potential for abuse are not far-fetched or speculative. Rather, they are reasonable concerns based on history—not remote, but very recent history. The following is a short summary of pre-9/11 law enforcement efforts to secure access to records of what Americans are reading. In all these cases—some of which were actually pending in courts on September 11, 2001—law enforcement agencies were forced to abandon their efforts, either by courts that quashed or narrowed the search requests or by public outrage and resulting legislative action.
I. Libraries
Librarians in particular have had to fend off efforts by federal agencies wanting to conduct large-scale searches or surveillance of reader records. In the early 1970s, controversy erupted when it came to light that the IRS, while investigating illegal bomb manufacture and use, sought to gain access to circulation records from libraries around the country in an attempt to form suspect lists. However, public objections did not discourage another federal agency, the FBI, from continuing its infamous Library Awareness Program until it, too, came to light in the late 1980s.
Under the Library Awareness Program, FBI agents clandestinely visited libraries to track the reading habits of people from communist countries, people with foreign-sounding names, and people with foreign accents. The Cold War-era counterintelligence program arose out of suspicions that Soviet agents were searching the stacks for valuable technical data, and targeted scientific and technical libraries, including some public and university libraries. As part of the program, agents asked library staff members to report the use of unclassified scientific reading materials by people from “hostile foreign nations.” Often, agents who didn’t have subpoenas or search warrants approached lower-level workers for information, which they used intimidation tactics to obtain.
This kind of attempt to search individual records was so troubling that beginning in 1973, 48 out of 50 states passed confidentiality statutes to prevent such invasions of privacy. As one state lawmaker explained it shortly before New York State’s library confidentiality law passed the assembly, “The library, as the unique sanctuary of the widest possible spectrum of ideas, must protect the confidentiality of its records in order to insure its readers’ right to read anything they wish, free from fear that someone might see what they read and use this as a way to intimidate them. Records must be protected from the self-appointed guardians of public and private morality and from officials who might overreach their constitutional prerogatives. Without such protection, there would be a chilling effect on our library users as inquiring minds turn away from exploring varied avenues of thought because they fear the potentiality of others knowing their reading history.”
II. Bookstores
For booksellers, contending with law enforcement efforts to gather information on what people are reading is an even more recent phenomenon. Their struggle to protect records of book purchases dates to March 25, 1998, when Independent Counsel Kenneth Start subpoenaed records from two Washington, D.C., bookstores as part of his investigation of President Clinton.
The bookstores, Kramerbooks & Afterwords and Barnes & Noble, filed motions to quash the subpoenas in federal court. District Court Judge Norma Holloway Johnson ruled that bookstore records are protected by the First Amendment; she declared that Starr would not receive any records unless he demonstrated both “a compelling need for the information sought” and “a sufficient connection between the information sought and the grand jury investigation.” Furthermore, Johnson said that bookstore subpoenas should not be employed until all other investigative avenues have been pursued with due diligence and thoroughly exhausted. Before Johnson made a final ruling on whether Starr was entitled to any of the records, Monica Lewinsky accepted an offer of immunity and authorized the release of her records to the independent counsel.
The extensive publicity given to the Starr subpoenas encouraged law enforcement authorities in other places to attempt to obtain bookstore records. In April 2000, the Denver police attempted to serve a search warrant on the Tattered Cover Book Store for the records of a man who was suspected of illegally manufacturing methamphetamine. During a raid on the man’s home, the police had found two books on producing the drug and a mailing envelope from the bookstore. They wanted the Tattered Cover’s records to determine whether their suspect had purchased the books.
The bookstore obtained a temporary restraining order to halt the search, launching a two-year legal battle that ended when the Colorado Supreme Court issued a unanimous decision quashing the warrant. The court ruled that both the First Amendment and the Colorado constitution “protect an individual’s fundamental right to purchase books anonymously, free from governmental interference.” While the ruling does not absolutely prohibit police from obtaining customer records from bookstores, the court found that a hearing must be held prior to the execution of any search warrant to determine that the police are seeking records they absolutely need.
As the Tattered Cover case was working its way through the courts, more and more bookstores were finding themselves the targets of law enforcement subpoenas. In September 2000, a federal grand jury issued a subpoena for customer purchase records from a Borders store in Overland Park, Kansas, at the behest of the Drug Enforcement Agency. The contents of the subpoena were initially sealed in order to protect an ongoing grand jury investigation, but it was eventually revealed that the subpoena sought purchase records pertaining to one particular individual who was the focus of a narcotics investigation. The records were never turned over to the DEA: Borders contested the subpoena, and on November 28, 2000, a District Court judge granted Borders’ motion to quash the subpoena on First Amendment grounds.
Even this clear ruling did not deter government agencies—at federal, state, and local levels—from seeking further subpoenas of customer purchase records from bookstores. In February of 2001, prosecutors in Cuyahoga County, Ohio, issued a search warrant to Amazon.com, demanding a list of their customers in northeastern Ohio who had purchased two audio CDs that played a role in a case they were investigating. When Amazon refused to turn over the information, the Ohio authorities obtained a second search warrant in King County, Washington, the jurisdiction that is home to Amazon’s corporate headquarters. Amazon informed King County officials that they were prepared to fight the warrant in court, and the Washington prosecutors agreed not to pursue the case.
Finally, on August 28, 2001, the Justice Department subpoenaed three bookstores—Arundel Books in Los Angeles, Olsson’s Books in Washington, D.C., and Books & Books in Coral Gables, Florida—as part of an ongoing investigation into possible campaign fundraising improprieties by then Senator Robert Torricelli’s (D-NJ). The subpoenas demanded records of purchases made at the three stores by Torricelli, David Chang—a New Jersey businessman who was accused of having bribed Torricelli in order to curry political favor—and six other individuals, going back as far as 1995. The bookstores announced that they were prepared to challenge the subpoenas in court and the Justice Department agreed not to attempt to enforce them.
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In October 2001, Section 215 the USA PATRIOT Act granted the FBI the power to access and review “any tangible thing,” including bookstore and library records. It also prohibited those served with Section 215 orders from disclosing the fact to anyone else; subjects under surveillance are never notified that their privacy has been compromised. Unlike in the past, there is no possibility of appeal or independent court review of these orders. In fact, Section 215 orders are handed down in a secret, closed court that has little leeway to deny warrant applications: Federal officials need only tell the Foreign Information Surveillance Court (FISC) that the records are being sought in connection with a terrorism-related investigation; no other evidence is required, and the person whose records are being sought need not be suspected of terrorism or criminal activity. This sweeping authority to access reading creates a grave new threat to reader privacy.