Eyeing What You Read: FBI in Libraries and Bookstores

The Village Voice ^ | 2-14-02 | Nat Hentoff

[serinde]

he December 25 issue of Capital Times, a newspaper in Madison, Wisconsin, contains a warning about how the FBI, under Attorney General John Ashcroft and the USA Patriot Act, can order bookstores to provide lists of books bought by people suspected of involvement in terrorism.

The definition of terrorism in the USA Patriot Act is so broad and vague that any number of American readers may be caught in this additional Ashcroft dragnet. For example: You commit "the crime of domestic terrorism if [any of your acts] appear to be intended to . . . influence the policy of a government by intimidation." Such "acts" could be based on what you read in a book.

From the Capital Times: "At A Room of One's Own . . . which stocks women's literature and women's studies texts but also gay and lesbian erotica, owner Sandy Torkildson does not keep sales records by purchaser name, in order to protect her customers. 'I think this is a real threat,' she said."

This threat was described in a November 1 letter to booksellers across the country by Chris Finan, president of the American Booksellers Foundation for Free Expression. This letter and its fears for the First Amendment have received hardly any mention in the press aside from the Capital Times and The Progressive magazine.

"[Under Section 215 of the USA Patriot Act] the director of the FBI may seek an order 'for any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine activities.'

"The request for such an order is to be made to a judge who sits in a special court that is sometimes called the 'spy court.' "

This is the secret court established by the Foreign Intelligence Surveillance Act (FISA). On its bench sit federal judges selected by the chief justice of the Supreme Court; they receive requests for subpoenas and warrants from federal agents engaged in investigating terrorism. In the 24 years since this court began functioning, hardly any request for a subpoena has been denied. I confirmed this during a recent debate in Washington with Viet Dinh, John Ashcroft's chief legal adviser in the Justice Department.

Chris Finan's letter to the country's booksellers continues: "The judge makes his decision 'ex parte,' meaning there is no opportunity for you or your lawyer to object in court. You cannot object publicly, either. The new law includes a gag order that prevents you from disclosing 'to any other person' the fact that you have received an order to produce documents." (Emphasis added.)

And this is the United States of America, John Ashcroft, attorney general—not the People's Republic of China?

Chris Finan goes on: "American Booksellers for Free Expression is deeply concerned by the potential chilling effect of court orders issued to booksellers under this new law. Normally, when a bookseller receives a [court order] for customer information, he or she has the opportunity to ask the court to quash the order on First Amendment grounds. In several cases, booksellers have successfully resisted subpoenas. Under FISA, however, booksellers may not have this chance. Depending on the wording of the order, the bookseller may be required to immediately turn over the records that are being sought." (Emphasis added.)

This is yet another moment in Ashcroft-Bush time when George Orwell should still be with us. Under Section 501 of the FISA, which has been amended in Ashcroft's USA Patriot Act, this command to turn over the names of book buyers—and borrowers of library books—has a deceptive exception, which is also in the USA Patriot Act.

"Such investigation [as demanding library records] of a United States person is not conducted solely upon the basis of activities protected by the First Amendment to the Constitution."

The freedom to read is not protected by the First Amendment? Well, the semanticists at the Department of Justice have interpreted that phrase to mean that you—"a United States person"—are still protected by the First Amendment if you stand on a corner and make a speech. But if the FBI has a suspicion that you may be connected to international terrorism or clandestine intelligence activities, they can find out what you're reading.

A Thomas Paine book advocating revolution, for instance?

So what can a bookseller do when the FBI comes calling? (Next week: advice to librarians.) Chris Finan tells bookstore owners, "You remain entitled to legal counsel. Therefore, you may call your attorney and/or the American Booksellers Foundation for Free Expression.

"Because of the gag order, however, you should not tell us that you have received a court order under the Foreign Intelligence Surveillance Act. You can simply tell us that you need to contact [our] legal counsel. . . .

"It may be possible for you to have a lawyer present during a search of your store records. If so, the lawyer will be able to help you ensure that there is no violation of the privacy of your other customers. However, it is possible that the FBI will demand immediate access to your records.

"If the agents are unwilling to permit you to contact your attorney, you should cooperate with them. Otherwise, you may be arrested for disobeying a court order. If you have no choice but to turn over your records, the best thing you can do is help the FBI find the information that it is looking for and thus avoid exposing the records of other customers." (Emphasis added).

That is, if you can swiftly remove information about presumably "innocent" customers quickly enough.

Here's a prelude to next week's library warnings. The Capital Times quotes Barbara Dimick, director of the Madison Public Library. She says: "We want to be able to tell people who use the library that records are confidential, and they can use materials without fear of intimidation. That's being usurped now by federal agents. . . . We're all real jittery about it."

Where are the newspaper editorials and reports on television and radio about this beheading of the First Amendment right to read?

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Read more of the Voice's coverage of the attack on civil liberties in post-September 11 America.

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[Dawgsquat]

The ignorant public screams

"GIVE ME SECURITY!!!!"

The government replies

"No sweat, hand us your freedom"

[John Locke]

Use cash for book purchases. Tell the Thought Police to stick it.

Use cash for all routine purchases. Never give your name, address, or other contact information. If asked for any form of identification, walk out.

I teach computer security, and have a simple rule: Do not collect information you cannot keep secure. Including - no, especially - from government. Remember, more people were killed in the twentieth century by government that by all the private sector criminals and terrorists put together. More, by orders of magnitude.

[FreedomPoster]

Bump for that!

[Fred Mertz]

Sage advice John Locke. Thanks.

[Whilom]

The crux of the librarian's argument had nothing to do with a bookseller. While I hold that a public library's records should be available to the public, a private bookseller's records should be subject only to a due process subpoena from a judge -- and, yes, I think a subpoena from a designated "spy court" is due process.

[francisandbeans]

Can you explain to me how such a search would assist in an investigation? This is a fishing liscence.

[Whilom]

A search of a library's records? I suppose it would help in some investigations, not help in others. It's immaterial, though, whether or not it "helps." Librarians have no proprietary right to public records.

[francisandbeans]

I'm not talking about libraries. I am talking about book sellers.

[verity]

The subtle sounds of black helicopters and hobgoblins! :~)

[NMC EXP]

“It [the State] has taken on a vast mass of new duties and responsibilities; it has spread out its powers until they penetrate to every act of the citizen, however secret; it has begun to throw around its operations the high dignity and impeccability of a State religion; its agents become a separate and superior caste, with authority to bind and loose, and their thumbs in every pot. But it still remains, as it was in the beginning, the common enemy of all well-disposed, industrious and decent men.” -- Henry L. Mencken, 1926

And it has become even worse since 1926.

Regards

J.R.

[francisandbeans]

just a tad.

[Whilom]

Book sellers have a proprietary right, but not an exclusive right, to their records. Like other business records (phone company records of phone calls, for example) the records of book sellers are subject to subpoena.

[GailA]

btt

[SpookBrat]

Read in a bit

[Mr. K]

You make a good point, for all freepers here to consider. I did not quite like this article, but when I re-read it and substituted Reno for Ashcroft- I went balistic.

We must not be like Democraps- when our own are wrong- we need to tell them, or else we ARE hypocrites.

[francisandbeans]

Thanks for admitting that. I'd prefer to admit when I am wrong, and have people know that all debates with me will be intellectually honest, than to be thought of someone protecting a position. I wish more freepers would follow the exmple that you set (and that I think I set).