Spring+2004+q1+answer


 * //Spring 2004 Question 1

Since September 11, 2001, legislation, such as the USA Patriot Act, has been passed, expanding the power given to law enforcement agencies to monitor the communications of residents of the US in order to detect potential terrorist activity. Write a case analysis using an information setting of your choice in order to respond to: a. Discuss the elements of the Patriot Act that engender the tension between the government protecting the national security versus protecting the civil liberties of individual citizens. b. Discuss how the Patriot Act has heightened the basic tension of professional, ethical and legal issues for information professionals confronted with these decisions. c. Determine what steps you would take to determine appropriate policies and procedures for your information organization.//**

In light of Sept 11th… Patriot Act was passed Oct 2001. Many felt it was a rush to judgment (passed with no oversight and no hearings) when emotions were running high before the implications of the legislation were fully explored. Some feel like the extent of the powers granted has been unlimited. (from the ALA website) “The Patriot Act amended over 15 federal statutes, including the laws governing criminal procedure, computer fraud and abuse, foreign intelligence, wiretapping, immigration, and the laws governing the privacy of student records. These amendments expanded the authority of the Federal Bureau of Investigation and law enforcement to gain access to business records, medical records, educational records and library records, including stored electronic data and communications. It also expanded the laws governing wiretaps and “trap and trace” phone devices to Internet and electronic communications. These enhanced surveillance procedures pose the greatest challenge to privacy and confidentiality in the library. Section 215: Access to Records Under Foreign Intelligence Security Act (FISA) Amends the business records provision of the Foreign Intelligence Surveillance Act (FISA) to allow FBI agents to obtain "any tangible thing," which includes books, records, papers, floppy disks, data tapes, computers and their hard drives, and any type of record in any format. Prior to the PATRIOT Act, FISA only permitted agents to obtain car rental records, hotel records, storage locker records, and common carrier records for a foreign agent. Allows FBI agents to ask the Foreign Intelligence Surveillance Court (FISC) to issue an ex parte, secret court order to obtain any kind of record or tangible thing when the record sought is for an investigation into terrorism or foreign espionage. Lowers the legal standard for obtaining a court order under FISA. Under the new FISA, the agent need only "specify that the records concerned are sought for an authorized investigation" in order to obtain a warrant from the special FISA court. Prior to the PATRIOT Act, the agent needed to demonstrate "probable cause" that the target of the investigation was an agent for a foreign power. Allows investigations to target U.S. citizens, as long as the investigation is not based solely upon activities protected by the First Amendment. (Note that this does not exclude investigations into acts and behavior that may include First Amendment protected activities.) Prior to the PATRIOT Act, FISA could only be used when pursuing non-citizen foreign agents. Prohibits the library from notifying the patron under suspicion, the press, or anyone else that a warrant has been served upon the library, or that records have been surrendered. Under the rules of the FISA Court, only FBI agents or authorized U.S. attorneys can appear before the FISA court, eliminating any possibility of challenging the order. Codified at 50 U.S.C. § 1862 Section 216: Relating to the Use of Pen Register and Trap and Trace Devices Grants expanded wiretapping authority to federal and state law enforcement agencies that allows monitoring of public computers under the Electronic Communications Privacy Act (ECPA). Extends the telephone monitoring laws ("pen register," "trap and trace") to include routing and addressing information for all Internet traffic, including email addresses, IP addresses, and URLs of Web pages. FBI may install hardware or software on your network to accomplish monitoring if yours won't work. State law enforcement agencies may apply for and obtain an order under this provision, which is not limited to the investigation of terrorism or foreign intelligence matters. prohibits the library from notifying the patron under suspicion, the press, or anyone else that an investigation is underway. This provision will NOT sunset in 2005. Codified at 18 U.S.C. §§ 3121-3127 Section 214: Pen Register and Trap and Trace Authority under FISA Extends the FBI's telephone monitoring authority in FISA investigations ("pen register," "trap and trace") to include routing and addressing information for all Internet traffic, including email addresses, IP addresses, and URLs of Web pages. As with Section 215, the agent only needs to claim that he believes that the records he wants are "sought for" an ongoing investigation related to terrorism or intelligence activities. Codified at 50 U.S.C. §1852 Section 505: Miscellaneous National Security Authorities Authorizes the Federal Bureau of Investigation to issue National Security Letters (NSLs) to entities providing wire or electronic communication services. NSLs are a type of administrative subpoena. NSLs can be used to compel entities providing wire or electronic communications services to turn over subscriber information, billing information, and electronic communication transactional records to the FBI. In some circumstances, libraries may be deemed to be "wire or electronic communications service providers." NSLs are issued by an FBI agent without any review by a court of law. Does not require the agent to demonstrate "probable cause," the existence of specific facts to support the belief that a crime has been committed or that the records sought are evidence of a crime. Instead, the agent only needs to claim that the items are relevant to an ongoing investigation to protect against international terrorism or espionage. As with Section 215, libraries or librarians served with an NSL may not disclose, under of penalty of law, the existence of the NSL or the fact that records were produced as a result of the NSL. A patron cannot be told that his or her records were given to the FBI or that he or she is the subject of an FBI investigation. A federal district court recently ruled this provision unconstitutional; however, the government is appealing the court's decision, and the court's decision is stayed while the government appeals the court's decision. Codified in law at 18 U.S.C. §2709. Other Provisions of Interest That Do Not Directly Affect Libraries Section 218: Foreign Intelligence Information Requirement for FISA Authority. Amends FISA so that foreign intelligence or terrorism need only be “a significant purpose” of the investigation, rather than “the purpose” of the investigation. Relaxes the legal standard for FISA surveillance. Section 219: Single-Jurisdiction Warrants for Terrorism Section 220: National Search Warrants for Electronic Evidence Both provisions permit federal courts located in a district where a crime or act of terrorism has occurred to issue a court order that may be served and executed nationwide. Section 220 affects stored e-mail and other electronic data. Section 206: Roving Surveillance Authority under FISA Permits the use of “roving wiretaps” in a FISA investigation, which allows the investigating agency to obtain a single court order to monitor the electronic communications of a person at any location or on any device, including e-mail and Internet communications. The order need not identify the person or entity whose assistance is required for the monitoring. It is a generic order that may be presented at any time to a newly discovered service provider. Updates FISA to match federal wiretap laws that allow roving wiretaps. The implications of the Patriot Act on libraries have shaken the very foundations of privacy. Resolution on the USA Patriot Act and Related Measures That Infringe on the Rights of Library Users

WHEREAS, The American Library Association affirms the responsibility of the leaders of the United States to protect and preserve the freedoms that are the foundation of our democracy; and WHEREAS, Libraries are a critical force for promoting the free flow and unimpeded distribution of knowledge and information for individuals, institutions, and communities; and WHEREAS, The American Library Association holds that suppression of ideas undermines a democratic society; and WHEREAS, Privacy is essential to the exercise of free speech, free thought, and free association; and, in a library, the subject of users' interests should not be examined or scrutinized by others; and WHEREAS, Certain provisions of the [|USA PATRIOT Act], the revised Attorney General Guidelines to the Federal Bureau of Investigation, and other related measures expand the authority of the federal government to investigate citizens and non-citizens, to engage in surveillance, and to threaten civil rights and liberties guaranteed under the United States Constitution and Bill of Rights; and WHEREAS, The USA PATRIOT Act and other recently enacted laws, regulations, and guidelines increase the likelihood that the activities of library users, including their use of computers to browse the Web or access e-mail, may be under government surveillance without their knowledge or consent; now, therefore, be it RESOLVED, That the American Library Association opposes any use of governmental power to suppress the free and open exchange of knowledge and information or to intimidate individuals exercising free inquiry; and, be it further RESOLVED, That the American Library Association encourages all librarians, library administrators, library governing bodies, and library advocates to educate their users, staff, and communities about the process for compliance with the USA PATRIOT Act and other related measures and about the dangers to individual privacy and the confidentiality of library records resulting from those measures; and, be it further RESOLVED, That the American Library Association urges librarians everywhere to defend and support user privacy and free and open access to knowledge and information; and, be it further RESOLVED, That the American Library Association will work with other organizations, as appropriate, to protect the rights of inquiry and free expression; and, be it further RESOLVED, That the American Library Association will take actions as appropriate to obtain and publicize information about the surveillance of libraries and library users by law enforcement agencies and to assess the impact on library users and their communities; and, be it further RESOLVED, That the American Library Association urges all libraries to adopt and implement patron privacy and record retention policies that affirm that "the collection of personally identifiable information should only be a matter of routine or policy when necessary for the fulfillment of the mission of the library" (ALA [|Privacy: An Interpretation of the Library Bill of Rights]); and, be it further RESOLVED, That the American Library Association considers sections of the USA PATRIOT Act are a present danger to the constitutional rights and privacy rights of library users and urges the United States Congress to: provide active oversight of the implementation of the USA PATRIOT Act and other related measures, and the revised Attorney General Guidelines to the Federal Bureau of Investigation; hold hearings to determine the extent of the surveillance on library users and their communities; and amend or change the sections of these laws and the guidelines that threaten or abridge the rights of inquiry and free expression; and, be it further RESOLVED, That this resolution be forwarded to the President of the United States, to the Attorney General of the United States, to Members of both Houses of Congress, to the library community, and to others as appropriate. Initiated by: Committee on Legislation Cosponsored by: Committee on Legislation and Intellectual Freedom Committee Endorsed by: OITP Advisory Committee, LITA Endorsed in principle by: ACRL, ALTA Executive Board, ALSC, ASCLA, AASL Legislation Committee, Intellectual Freedom Round Table Prior History: CD#19.1 January 2002, CD#20.5 January 2002, CD#20.3 January 2002 Adopted by the ALA Council, January 29, 2003 Resolution Reaffirming the Principles of Intellectual Freedom in the Aftermath of Terrorist Attacks

WHEREAS: Benjamin Franklin counseled this nation: “They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety”; and WHEREAS: “The American Library Association believes that freedom of expression is an inalienable human right, necessary to self-government, vital to the resistance of oppression, and crucial to the cause of justice, and further, that the principles of freedom of expression should be applied by libraries and librarians throughout the world” (Policy 53.1.12, “[|Universal Right to Free Expression]”); now, THEREFORE BE IT RESOLVED: that the American Library Association reaffirms the following principles, and: Actively promotes dissemination of true and timely information necessary to the people in the exercise of their rights (Policy 53.8, “[|Libraries: An American Value]”); Opposes government censorship of news media and suppression of access to unclassified government information (Policy 53.3, “[|Freedom to Read];” Policy 53.5, “[|Shield Laws]”); Upholds a professional ethic of facilitating access to information, not monitoring access (Policy 53.1, “[|Library Bill of Rights];” Policy 53.1.17, “[|Intellectual Freedom Principles for Academic Libraries]”); Encourages libraries and their staff to protect the privacy and confidentiality of the people’s lawful use of the library, its equipment, and its resources (Policy 52.4, “[|Policy on Confidentiality of Library Records]”); Affirms that tolerance of dissent is the hallmark of a free and democratic society (Policy 53.1.12, “[|Universal Right to Free Expression]”); Opposes the misuse of governmental power to intimidate, suppress, coerce, or compel speech (Policy 53.4, “[|Policy on Governmental Intimidation];” Policy 53.6, “[|Loyalty Oaths]”); and, BE IT FURTHER RESOLVED: that this resolution be forwarded to the President of the United States, to the Attorney General of the United States, and to both Houses of Congress. The Patriot Act provides the right for subpoenas to be served for the surrender of library records for any individual patron in the name of national security. Libraries are fiercely protective of the right of patrons’ privacy. Some ILS’s are set up where the link between the patron and the item is broken with no history available… Patrons do not have the right to confront their accuser. Library personnel are not allowed to tell anyone they have been approached by government agents. ALA has guidelines about what to do when faced with a subpoena.