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Risky Patriot Act Exemptions By: Edgar Brenner
Washington Times | Tuesday, August 19, 2003

In a public announcement criticizing the Patriot Act, the American Civil Liberties Union contended it is now legal for government agents to "get courts to rubber-stamp...demands for information about the books you read... he books you borrow [and] criminally charge librarians if they tell you" of the investigation. In the ACLU view, the Patriot Act has tipped the balance in favor of national security over civil rights.

A carefully orchestrated publicity campaign has led to the introduction in Congress of the "Freedom to Read Protection Act," H.R. 1157, sponsored as of July 21 by 129 members of Congress. The objective of the legislation is to restore September 11, 2001, and pre-Patriot Act standards to "libraries, bookstores and their patrons" assertedly to protect First Amendment activities, and also to permit librarians and booksellers to tell suspects they are under investigation — even when doing so would jeopardize national security.

The legislation, cloaked in the noble objective of "freedom to read," ignores the sinister uses to which terrorists can make of libraries. Not every library user will choose to read "Little Women" or Playboy. For example, most libraries today provide Internet computer access. Such access can bring up information from benign databases, but also guidance in making conventional bombs and weapons of mass destruction. Library computers, like computers generally, can be used to communicate. Street directories, available at most libraries, can be used to locate old friends or to target persons for theft or assassination. Terrorists have been known to communicate by encrypted e-mail.

Like so much in modern society, libraries and bookstores can be used for both good and bad purposes, but that is no justification for providing terrorists with a safer harbor in which to operate.

Excluding libraries and bookstores from the Patriot Act makes no more sense than exempting hospitals, museums, colleges, newspapers, theaters, labor unions and drugstores, none of which is mentioned in the proposed legislation. Each can point to a strong public interest in confidential aspects of their activities, but they should not be shielded from investigations that need to follow all available leads. Government investigators should always be held accountable for the way they exercise their powers, but libraries and bookstores are not the only organizations that have a claim in the public interest to the confidentiality of some of their activities.

The ACLU reliance on a constitutional right to read to justify special treatment of libraries and book stores is overly broad. The right to walk the public streets is also constitutionally protected, but the surveillance of the suspects walking the public streets is not subject to challenge on constitutional grounds.

An additional argument advanced in support of the Freedom to Read Protection Act is that "libraries and booksellers report" that their "patrons ... are concerned that their reading and research habits will be scrutinized by the federal government." Such vague concerns are easy to express but much more difficult to justify on an objective basis. Such a concern, though sincerely felt, is not realistic.

How might this investigative authority be exercised? Government agents may become interested in the information gathered at, or sent from, a library or bookstore by a person otherwise under investigation. But this would not reflect a generalized interest in reading or research habits.

The supporters of the proposed legislation cannot point to a pattern of governmental abuse in the investigation of libraries and bookstores. Rather, it is the hypothetical possibility of abuse upon which they attempt to rely. How many times were libraries or bookstores subjected to the kind of investigation that the legislation is intended to preclude? Yet the sponsors ask the Congress and the public to assume that high-ranking officials of the FBI filed false applications with judges or magistrates and ignored the statutory requirement that such investigations of "a United States person ... not [be] conducted solely upon the basis of activities protected by the First Amendment to the Constitution." We are also asked to assume federal judges were derelict in reviewing the applications submitted by the FBI.

What would it mean to "restore pre-Patriot standards to libraries and bookstores"? Do the proponents really intend to restore the harmful wall of separation between foreign intelligence-gathering and criminal-law enforcement? The inability of counterintelligence agents to share information with criminal-law enforcement personnel contributed significantly to the tragedy of September 11. Why even suggest that such discredited and dangerous restrictions on effective law enforcement, eliminated by the Patriot Act, be re-imposed?

The proposed legislation would also allow librarians and booksellers to alert suspects they are under investigation. Such conduct could jeopardize an important investigation. Why encourage it? Criminal investigations are routinely conducted in secret both to preserve the effectiveness of the investigation and the reputation of persons investigated but ultimately not charged. Why make a blanket exception to this practice in the case of libraries and bookstore?

The Patriot Act, passed shortly after September 11, was a major step to modernize the response of law enforcement to the threat of terrorism. Though not perfect, it has achieved many of its intended objectives. However, many of the important provisions are "sunset," meaning they will expire in 2005. Consequently, it will be incumbent on Congress to re-evaluate, re-enact or change all or part of the Patriot Act. This review should be performed on an orderly and comprehensive basis. Singling out libraries and bookstores for early and separate review can easily lead to the kind of errors a comprehensive review should prevent.

Such vital legislation should be amended only on the basis of well-established facts. Congress should not rely on anecdotal hearsay reports by librarians and booksellers that some of their patrons have First Amendment concerns. These concerns have not been justified.

Edgar H. Brenner is co-director of the Inter-University Center for Legal Studies.

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