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Librarians vs. Ashcroft By: Mike Martin
FrontPageMagazine.com | Thursday, June 19, 2003

Librarians in the U.S. want to throw the book at the U.S. Patriot Act -- specifically Section 215, which they claim "threatens bookstore and library privacy."

The experts, meanwhile, have been debating precisely what effect the new anti-terrorism law may have on public libraries.

Also debatable is one pertinent question: do Patriot Act provisions differ substantively from laws that routinely allow civil litigants to pursue books, records, and other confidential information in an often-speculative free-for-all called the "discovery" process? 

Librarians Lambaste the Law

"FBI agents do not need to prove they have 'probable cause' before searching bookstore or library records," says a May 15, 2003, "position statement" and press release authorized by Chris Finan of the American Booksellers Foundation for Free Expression, and by Judith F. Krug, executive director of the American Library Association’s Office for Intellectual Freedom.  (Neither Finan nor Krug responded to requests for comment from FrontPage).

Agents "can get access to the records of anyone whom they believe to have information that may be relevant to a terrorism investigation, including people who are not suspected of committing a crime or of having any knowledge of a crime," the statement continues.

Criminal investigators, however, routinely subpoena records of innocent persons or organizations they believe may have information material to their cases -- even libraries. 

"The New York Times inaccurately reported that Assistant Attorney General Viet Dinh said FBI 'agents have contacted about 50 libraries nationwide in the course of terrorism investigations,'" said Department of Justice spokesperson Barbara Comstock. Referring to Eric Lichtblau's article "Justice Dept. Lists Use of New Power to Fight Terror," published May 21, 2003, Comstock said: "The transcript of the hearing makes clear that AAG Dinh was speaking of ordinary criminal cases rather than national security cases." 

Singled Out?

The idea that the Patriot Act targets libraries or bookstores for special treatment is also fallacious, wrote Arizona Republican Representative Jon Kyl in a recent Tucson Citizen op-ed column. 
"Section 215 does not even mention the word 'libraries,'" Kyl objected.  "Nor does it allow the Justice Department to order any library or school to turn over its records."

"No, it doesn't mention the word 'libraries,'" said Hofstra Law School professor Eric M. Freedman, an expert on Constitutional law, ethics and the First Amendment who does not support Section 215.  "No, it doesn't allow the 'Justice Department' to order, either.  The order is issued by the court."

Section 215, Kyl continues, can only be used "in cases of suspected terrorism and where court approval is obtained." Thirty one bookseller and library associations interpret the term "court approval" as "secret court blessing." 

"The request for an order authorizing the search is heard by a secret court in a closed proceeding," says the signed position statement, "making it impossible for a bookseller or librarian to have the opportunity to object on First Amendment grounds prior to the execution of the order."
However, Section 215 seems to both protect and acknowledge the First Amendment in at least two places, while repeating its prime directive: protection against international terrorism:

"The Director of the Federal Bureau of Investigation or a designee of the Director...may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.

"An investigation conducted under this section shall not be conducted of a United States person solely upon the basis of activities protected by the first amendment to the Constitution of the United States."

"No one knows" what "'solely upon the basis of activities protected by the first amendment to the Constitution of the United States means," Freedman told Front Page. Deciphering the law's First Amendment intentions perplexes even legal experts: librarians and booksellers seem to have no trouble whatever.

Regardless of the Act's First Amendment intentions, requiring public libraries to hand over information on the reading habits of its patrons is not a threat to First Amendment rights. "There is no reasonable expectation of privacy at a public library," according to constitutional and appellate law expert Rob Scott, of the New York and Dallas based law firm Scott & Scott. "Public library records are city records, and therefore public information."  So, where's the threat?

Eager to Cooperate

Despite complaints by library associations about the new law's alleged intrusiveness, some libraries appear eager to cooperate with criminal investigations, voluntarily providing information to investigators.   

Regarding a recent survey of FBI field offices, Assistant Attorney General Dinh told the House Subcommittee on the Constitution, "that libraries have been contacted approximately 50 times" by agents, based on  "suspicion or voluntary calls from libraries regarding suspicious activities. Most, if not all of these contacts that we have identified were made in the context of a criminal investigation and pursuant to voluntary disclosure or a grand jury subpoena." 

Discovering "Discovery"

Section 215 of the Patriot Act has nothing on American civil "discovery," a process most citizens know little about and most lawmakers -- themselves attorneys -- take for granted. Often likened to a "fishing expedition," this courthouse tool can and frequently does demand as much -- if not more -- confidential information from civil litigants than many criminal statutes, including the Patriot Act. Lawyers use the often lengthy and contentious discovery process to get confidential information in civil cases.

"The most common breach of confidentiality occurs during civil/legal actions in which you can be forced to release your records during evidence discovery and during trials in which you claim injury, disability, mental or emotional suffering," warns the Mentor Research Institute, a noted Portland, Oregon, based non-profit mental health organization.  "Such procedures also allow opposing attorneys to interview, take depositions and obtain testimony from your counselor, doctor or psychotherapist."

Unlike requirements in the Patriot Act, in most civil cases a court need not sign a subpoena or an order demanding parties in civil lawsuits comply with discovery requests.     

Attorneys can serve "Requests for Production of Documents" and "Interrogatories" on opposing parties without a court order, demanding all manner of records, files, papers, or, in the case of interrogatories, answers to questions that may number in the hundreds. 

Attorneys use these demands for both legitimate investigation and downright harassment.  Few documents are more intimidating or daunting than hundreds of pages of production requests or hundreds of questions designed to probe every moment of a litigant's life -- case-relevant or not!

Subpoenas issued during discovery also carry less probable cause than the average criminal investigation requires, and sanctions -- both criminal and monetary -- in cases of non-compliance.

Failure to comply with document requests, interrogatories and subpoenas during a civil lawsuit can lead to serious consequences, including an "order of default," in which the other side gets everything it wants with the stroke of a judge's pen.  Judges can also send non-compliant parties to jail, or exact heavy, daily fines for each day the party fails to turn over information the other side has requested.   

Civil cases are, nonetheless, different from cases brought under the Patriot Act, Freedman explained.

"The library at least, and the patron almost certainly -- as a matter of library policy -- will get notice and an opportunity to be heard and object," to the court about disputed civil discovery requests, Freedman said.   

This "right of objection" is not really a "right" at all, but a matter of privilege.  Litigants can object to onerous discovery requests, but they had better have top-notch legal representation.  Judges rarely listen to so-called "pro se" or self-represented litigants, and court staffers generally treat such litigants as pariahs. 

Good lawyers are not cheap.  Attorney fees average in the hundreds of dollars per hour, and discovery protests can be just as time-consuming and contentious as the discovery process itself.

"Discovery is not now and never was free. Discovery is expensive," wrote an appellate court in a 1991 securities litigation case involving Convergent Technologies, Inc. 

U.S. Supreme Court Justice Lewis Powell agreed in a different 1980 opinion.  

"If there is disagreement about [the expense of discovery], there is none whatever about the effect of discovery practices upon the average citizen's ability to afford legal remedies," Powell opined.

Begging, Nagging Questions 

Americans are a suit-happy people with more lawyers per capita than most other nations and a penchant for ceding civil liberties (the right to choose what we eat may be next) in exchange for monetary damages.  This unhappy situation begs the question: if we are so willing to relinquish our civil liberties in civil court, why the uproar over the Patriot Act, a largely criminal statute that has more protections than those provided to parties in lawsuits? 

Freedman offers this perspective: "When private parties are at odds with each other, we balance the competing interests out through tort litigation, which responds to a variety of public policy concerns and normally settles. When the government acts pursuant to statute, there is no common law dialogue." 

If tort litigation indeed responded to a "variety of public policy concerns," we would not have the legendary civil process abuses that have made our courts a laughing stock on too many shores.  We would not have contentious divorce battles destroying countless families. We would not have doctors and physicians who practice lawyer- rather than patient-driven medicine.   We would not have multi-million dollar judgments for scratches on cars.  We would not have a now much-used term: "frivolous lawsuit." 

We might, however, have the Patriot Act. 

Ten years from now we can look back and count how many legitimate, law-abiding companies have been driven into bankruptcy or to the brink of ruin by tort-happy lawyers looking for big contingency fees and deep pockets, regardless of fault or blame.  At the same time, we can look back and see how many legitimate, law-abiding citizens the Patriot Act has ruined. 

Odds are, the Barristers will have trounced the Patriots and the real losers -- We the People -- will have a few less civil liberties to worry about losing -- or giving away.

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