Ashcroft to Declassify Data Collected Under Section 215 of the USA Patriot Act

In response to strong criticism from the American Library Association (ALA) for derisive remarks he made about ALA and other critics of the USA Patriot Act during a September 15 speech to restaurateurs, Attorney General John Ashcroft informed ALA President Carla Hayden by phone on Wednesday, September 17, that he would declassify data showing how often the Justice Department has sought the records of libraries, bookstores, and other businesses under Section 215 of the Patriot Act.

Free expression and civil rights groups welcomed the decision. Rep. Bernie Sanders (I-VT), who introduced The Freedom to Read Protection Act (H.R. 1157) to remove the threat created by Section 215 to the privacy of bookstore and library patrons' records, said he was happy with the decision, but stressed, "Now Congress must work to amend Section 215 of the Patriot Act."

"The ALA welcomes this commitment from Attorney General Ashcroft," said Hayden in a statement. "We look forward to learning how the Patriot Act is being used in libraries. This is an important first step toward having the information needed for meaningful public oversight and accountability. We hope this symbolizes a significant commitment to ongoing reporting to the American public and the U.S. Congress."

Chris Finan, president of the American Booksellers Foundation for Free Expression told BTW, "We welcome the Attorney General's promise to provide more information. But the fact that President Bush has just announced that the administration is seeking more power for the FBI to examine bookstore and library records [through the Anti-Terrorism Tools Enhancement Act 2003, H.R. 3037] concerns us greatly. We remain convinced that we need legislation to restore the protections for bookstore and library records that were eliminated by the Patriot Act."

Justice Department officials said they would declassify the department report on Section 215 of the USA Patriot Act -- which gives law enforcement officials broad authority to demand that libraries or bookstores turn over books, records, papers, and documents -- within the next several days, as reported by the New York Times. However, Knight Ridder reported that a memo it received last night shows that the law enforcement has not used the power granted under Section 215.

Yesterday's stunning turn of events is the culmination of a week that saw Ashcroft and ALA battle it out in the media over the controversial Patriot Act.

On Tuesday, September 15, in an address to the National Restaurant Association's Annual Public Affairs Conference, Ashcroft derided critics of the Patriot Act, especially ALA and its members. Characterizing debates about the Patriot Act as hysterical, Ashcroft's harsh words prompted a vehement reply from the American Library Association.

"We are deeply concerned that the Attorney General should be so openly contemptuous of those who seek to defend our Constitution," Hayden said in a statement, in a response to Ashcroft's speech. "Rather than ask the nations' librarians and Americans nationwide to 'just trust him,' Ashcroft could allay concerns by releasing aggregate information about the number of libraries visited using the expanded powers created by the USA Patriot Act."

Over the past year, public and political support to limit the broad powers given the FBI under Patriot Act has been growing. At the behest of librarians and independent booksellers, in March 2003, Rep. Sanders introduced H.R. 1157, and, since that time, Sanders' list of co-sponsors has grown to 135. Furthermore, due to the educational efforts of groups such as the ABFFE and ALA, controversy over the Patriot Act has garnered tremendous media coverage. Moreover, in late July, the U.S. House of Representatives voted overwhelmingly to withhold funding for "sneak and peek" searches of private property under the USA Patriot Act. To counter concerns about the law, in mid-August Attorney General Ashcroft embarked on a national tour to drum up support for the Act.

"According to … breathless reports and baseless hysteria," Ashcroft quipped in his September 15 speech, "some have convinced the [ALA] that under the bipartisanly enacted Patriot Act, the FBI is not fighting terrorism; instead, agents are checking how far you've gotten in the latest Tom Clancy novel.

"Now, you may have thought with all of this hysteria and hyperbole, that something had to be wrong," Ashcroft continued. "Do we at the Justice Department really care what you are reading? No. The law enforcement community has no interest in your reading habits. Tracking reading habits would betray our high regard for the First Amendment, and even if someone in government wanted to do so, it would represent an impossible workload and a waste of law enforcement resources."

In response, Hayden stressed in her statement: "The [ALA] has worked diligently for the past two years to increase awareness of a very complicated law -- the USA Patriot Act -- that was pushed through the legislative process at breakneck speed in the wake of a national tragedy. Because the Department of Justice has refused our requests for information about how many libraries have been visited by law enforcement officials using these new powers, we have focused on what the law allows. The Patriot Act gives law enforcement unprecedented power of surveillance -- including easy access to library records with minimal judicial oversight."

As for Ashcroft's contention that the FBI is bound by strict legal requirements within the Patriot Act, Hayden said, "Over the past two years, Americans have been told that only individuals directly involved in terrorism need to be concerned. This is not what the law says. The act lowers the legal standard to 'simple relevance' rather than the higher standard of 'probable cause' required by the Fourth Amendment….

"We also have been told that the law only affects non-U.S. citizens. This not what the law says. In fact, the act amended the Foreign Intelligence Surveillance Act (FISA) in such a way that U.S. citizens may now be investigated under the lowered legal standards applied to foreign agents."

While Ashcroft may claim that the FBI is not interested in what Americans are reading, Hayden stressed that librarians' history with law enforcement dating back to the McCarthy era "gives us pause. For decades, and as late as the 1980s, the FBI's Library Awareness Program sought information on the reading habits of people from 'hostile foreign countries,' as well as U.S. citizens who held unpopular political views."

Now, just a day after making light of librarians' and others concerns, Ashcroft is trying to make up. "I think the Justice Department was taken by surprise by the negative reaction that his attack on librarians had," Emily Sheketoff, executive director for ALA's Washington office, told the New York Times.

Rep. Sanders stressed that, despite Ashcroft's decision, Section 215 must still be amended. "The issue is not just what the Department of Justice has done in the past, but what it could do in the future as a result of this dangerous provision. The bottom line is the Federal Government should not be able to walk into a library or bookstore without probable cause and obtain the reading records of the American people." --David Grogan