Senate Vote May Affect Libraries

A Senate vote today on the renewal of the U.S.A. Patriot Act antiterrorism law could determine the extent of the Federal Bureau of Investigation’s (FBI) power to demand patron information from Harvard libraries.

The House of Representatives voted 251-174 Wednesday to renew a revised version of the Patriot Act, which expires Dec. 31. But at least one senator has vowed to filibuster the measure, and a bipartisan group of senators, including four Republicans and five Democrats, released a letter Wednesday criticizing the act’s failure to adequately address civil liberties concerns, especially those pertaining to the FBI’s access to library records.

Under current law, the FBI could demand that libraries release the record of what books an individual has checked out, as well as patron internet and e-mail usage information, according to FBI spokesman William D. Carter. But that information must pertain to a specific individual involved in an ongoing terrorism or intelligence investigation, Carter said.

Director of the Harvard University Library Sid Verba ’53 said that, to his knowledge, the University has received no such requests for information.

But Verba expressed concern about the powers granted to the FBI under the Patriot Act.

“There is really a very serious principle here having to do with people’s rights to read whatever they want to read without anyone else knowing what they’re reading,” Verba said.

In response to the act, Verba said, “We now try to purge our records, who borrowed what, as soon as we can.” He added that Harvard libraries do keep records of internet usage for statistical purposes, but the information is not linked to individuals.

Opponents of the current Patriot Act legislation express concern that the circumstances under which the FBI can demand information are much too broadly defined, according to Timothy H. Edgar, the national security policy counsel for the American Civil Liberties Union (ACLU).

“[Y]ou’re giving the FBI carte blanche to name hundreds or even thousands of innocent people and go on a fishing expedition,” said Edgar, a 1997 Harvard Law School graduate.

In their letter, the nine senators who oppose the Patriot Act legislation wrote that the FBI should only be allowed to demand records of individuals who are suspected terrorists or spies themselves or have an explicit connection to suspected terrorists or spies.

But Carter said that the FBI does not have the resources or the desire to go on “fishing expeditions.” In order to obtain records of the books an individual has checked out, Carter said, the FBI needs approval from the Foreign Intelligence Surveillance Act (FISA) Court, whose proceedings are not open to the public. The FBI can request other records, including those of internet usage or e-mail addresses, by issuing a National Security Letter (NSL), which a senior FBI official can authorize, Carter said.

“The level of review that has to be done in order to present a NSL is quite stringent,” Carter said.

Edgar said that some of the additions to the Patriot Act legislation being debated now would help safeguard civil liberties, such as the stipulation that a NSL must make explicit a recipient’s right to consult with an attorney.

But Edgar said that other changes may actually be detrimental to civil liberties. For instance, under the current act, a person who receives an information request from the FBI is under a lifetime gag order. The new legislation would allow individuals to challenge the secrecy of the requests in court, Edgar said. But he said this right is meaningless, because the bill stipulates that if a high-ranking government official testifies that such secrecy is required for national security, the court must accept that as conclusive.

“You have a right to challenge, but you don’t have a right to win unless the government gives in,” Edgar said.

The Patriot Act renewal legislation is facing a cloture vote in the Senate today. If 60 senators vote in favor of the measure, there can be no filibuster, which would make it likely that the bill would pass, Edgar said.

But because of the bipartisan opposition to the bill, Edgar said he is optimistic that the cloture vote will fail. In that case, a filibuster would most likely force the Senate to renew the legislation for an interim period in order to leave time for further debate of its provisions.

Even if the current version of the Patriot Act is renewed, the FBI’s access to library records will continue to be contested in the courts.

The Second Circuit Court of Appeals heard arguments in early November on two cases, one involving a library in Connecticut, in which the ACLU had successfully argued that the access to personal information under the Patriot Act violates constitutional rights.