Librarians Say Surveillance Bills Lack Adequate Oversight

At a public library in Santa Cruz, Calif., signs posted in 2003 inform patrons that their borrowing is subject to federal surveillance.
At a public library in Santa Cruz, Calif., signs posted in 2003 inform patrons that their borrowing is subject to federal surveillance. (By Kurt Rogers -- San Francisco Chronicle)

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By Ellen Nakashima
Washington Post Staff Writer
Friday, November 2, 2007

A little-remarked feature of pending legislation on domestic surveillance has provoked alarm among university and public librarians who say it could allow federal intelligence-gathering on library patrons without sufficient court oversight.

Draft House and Senate bills would allow the government to compel any "communications service provider" to provide access to e-mails and other electronic information within the United States as part of federal surveillance of non-U.S. citizens outside the country.

The Justice Department has previously said that "providers" may include libraries, causing three major university and library groups to worry that the government's ability to monitor people targeted for surveillance without a warrant would chill students' and faculty members' online research activities.

"It is fundamental that when a user enters the library, physically or electronically," said Jim Neal, the head librarian at Columbia University, "their use of the collections, print or electronic, their communications on library servers and computers, is not going to be subjected to surveillance unless the courts have authorized it."

Under the legislation, the government could monitor a non-U.S. citizen overseas participating in an online research project through a U.S. university library, and gain access to the communications of all the project participants with that surveillance target, said Al Gidari, a lawyer with the Perkins Coie firm who represents the Association of Research Libraries and the American Library Association.

The bills, which would replace a temporary law amending the Foreign Intelligence Surveillance Act, would not require the government to demonstrate "probable cause" that the foreign person targeted is a terrorist or a spy or to let the FISA court, which grants surveillance warrants, know that the tap will be on a library. Under the Senate bill, a general surveillance program may be authorized yearly by the attorney general and the director of national intelligence. The House's version would require the FISA court to authorize surveillance directed at people overseas.

The librarians said their concern about such monitoring is rooted in recent history.

In the summer of 2005, FBI agents handed an administrative subpoena called a national security letter (NSL) to a Connecticut librarian, and demanded subscriber, billing and other information on patrons who used a specific computer at a branch library. NSLs can be approved by certain FBI agents without court approval. The agents ordered the librarian to keep the demand secret. But he refused to produce the records, and his employer filed suit, challenging the gag order. A federal judge in September 2005 declared the gag order unconstitutional.

Librarians cried out over the issue and in March 2006 won language in the reauthorized USA Patriot Act that specified that libraries acting as book-lenders not be subject to NSLs. But FBI Director Robert S. Mueller III said, in written remarks to the Senate Judiciary Committee in May 2006, that "a library is only subject to an NSL if it provides electronic communication services."

Today, many universities -- and by extension their libraries -- can be considered Internet service providers, because they run private Internet networks allowing students and faculty to send e-mail, conduct online research and engage in online chats without touching the public system, experts said.

Many universities also have branches overseas, where users can log onto the school network and gain access to the library's server on U.S. soil. Moreover, university research -- especially in the scientific arena -- is frequently conducted online and in groups, often internationally, by accessing shared databases and advanced private Internet networks, librarians said.

"For me, the issue is if somebody is going to follow the research thread of a faculty or student, that may be something that needs to happen to protect all of us, but it needs to be done under judicial review and with a warrant," said Larry Alford, dean of libraries at Philadelphia's Temple University, which also has campuses in Rome and Tokyo. "The transactions that used to go on inside of a classroom and inside of a library building now can go on electronically and virtually."


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