The Patriot Act: Last Refuge of a Scoundrel

By Karen G. Schneider
American Libraries Columnist 

Coordinator of the Librarians’ Index to the Internet.

Column for March 2002

“Patriotism is the last refuge of a scoundrel.”
—Samuel Johnson

First of all, I’m a hawk. I believe we should be in Afghanistan, I’d like to see bin Laden oh, say, six feet under, and behind my bifocals, this middle-aged veteran cheers her colleagues in the armed forces defending our nation.

However, the USA Patriot Act (AL, Jan., p. 20) is treason pure and simple, and you need to know how and why, because it presents particularly pernicious issues for the users who rely on your Internet services.

The Patriot Act is not antiterrorism legislation; it’s antispeech legislation, and is no more a direct response to the September 11 attacks than the Children’s Internet Protection Act is a direct result of sincere concern by members of Congress about the safety of minors. The cold, cynical reality is that the Patriot Act is a bloated hodgepodge of speech-chilling law that lurked in congressional corridors not only before September 11 but in large part before the Bush administration. It was hustled into reality in the post-9/11 environment so quickly, secretively, and undemocratically that our Bill of Rights had been clocked with a one-two punch well before any of us realized it was under attack.

Did you miss the passage of the Patriot Act? No wonder; it was smuggled into law. As the Electronic Frontier Foundation (EFF) reported, “several of the key procedural processes applicable to any other proposed laws, including inter-agency review, the normal committee and hearing processes and thorough voting, were suspended for this bill.”

What does it mean?

As the Center for Democracy and Technology explains, the Patriot Act:

  • Allows government agents to collect undefined new information about Web browsing and e-mail without meaningful judicial review; as the EFF put it, the “FBI and CIA can now go from phone to phone, computer to computer without demonstrating that each is even being used by a suspect or target of an order.”
  • Allows Internet service providers, universities, and network administrators to authorize surveillance of “computer trespassers” without a judicial order;
  • Overrides existing state and federal privacy laws, allowing the FBI to compel disclosure of any kind of records, including sensitive medical, educational, and library borrowing records (including, I suspect, Internet records), upon the mere claim that they are connected with an intelligence investigation;
  • Allows law enforcement agencies to search homes and offices without notifying the owner for days or weeks after, not only in terrorism cases, but in all cases—the so-called “sneak and peek” authority.

There are many more scary parts to the Patriot Act, some of them almost unbelievable. As EFF explains it, the government can investigate even simple Web searching “by merely telling a judge anywhere in the U.S. that the spying could lead to information that is ‘relevant’ to an ongoing criminal investigation.”

Be prepared

First, read the documents provided by CDT, ACLU, EFF, EPIC, and all the other tweedy do-gooders we usually associate with—they’re all linked from the ALA Washington Office site. Learn what is meant by pen and trap, FISA, court order, and probable cause. Next, explain the Patriot Act to your staff, board, and Friends.

Meanwhile, do an inventory to identify all documents that track your patrons’ Internet activities: Internet sign-up sheets, Web logs, caches on individual computers as well as servers, and so forth. Talk to your techies; point out what the Patriot Act means for sensitive patron data, and solicit their advice.

Keep in mind that any documentation you retain (intentionally or otherwise) is potentially susceptible to law enforcement inquiries, court orders, and so forth. Follow through on your policies with procedures and training to ensure that if you want sign-up sheets shredded every day, that is in fact what happens. When the court order comes, it is too late to “pull an Enron” and rush to the shredder; at that point, you are legally obligated to comply with the law.

It’s my belief that libraries need to be forthright with patrons about the potential for seizure of confidential information related to their activity. Tell patrons just what you do with the data you collect about them, so they can then decide whether to log on to their favorite anti-government chat room at the library or go elsewhere.

Weed your Inner Ashcroft

Following September 11, many of us have struggled with our conflicting concerns about national security and our strong beliefs in civil rights. Michael Kinsley, writing in the January 4 Washington Post, observed that “in part because of self-censorship [Attorney General] John Ashcroft can relax because people have been listening to their Inner Ashcroft.” Meanwhile, the Outer Ashcroft has gone so far as to say that we shouldn’t even question attacks on freedom such as the Patriot Act because we will “only aid terrorists, for they erode our national unity and diminish our resolve.”

Don’t just sit there reading this article: Go out onto the floor and look at the faces of the people using your computers. Do you really think it helps democracy to put everyone in America under the lens of unbridled government surveillance?

Rebuking both Inner and Outer Ashcrofts, I respond that there is nothing more corrosive to our national unity than diluting the rights for which we as Americans can be justifiably proud. We as librarians can be true patriots—by doing what we can to protect the Constitution and the people we serve.