The USA PATRIOT Act
and the Library
donna Bair-Mundy
Discussion question:
What is privacy?
Why do we need it?
Informational privacy - Westin's
definition - part 1
Privacy is the claim of individuals,
groups, or institutions
to determine for themselves
when, how, and to what extent
information about them
is communicated to others.
Westin, Alan F. 1970. Privacy and freedom. London: Bodley Head.
Informational privacy - Westin's
definition - part 2
Viewed in terms of the relation of
the individual to social participation,
privacy is the voluntary and temporary
withdrawal of a person from the
general society through physical
or psychological means, either
in a state of solitude or, when among
larger groups, in a condition of
anonymity or reserve.
Informational privacy - Westin's
definition - part 3
The individual's desire for privacy
is never absolute, since participation
in society is an equally powerful desire.
Informational privacy - Westin's
definition - part 4
Thus each individual is continually
engaged in a personal adjustment
process in which he balances
the desire for privacy with the desire
for disclosure and communication
of himself to others, in light of
the environmental conditions and
social norms set by the society
in which he lives.
Informational privacy - Westin's
definition - part 5
The individual does so in the face
of pressures from the curiosity of others
and from the processes of surveillance
that every society sets in order
to enforce its social norms.
Desire to avoid
being
manipulated or
dominated wholly
by others
Release from tensions
of life in society
requires release from
pressure of playing
social roles
Westin's privacy theory: 4
functions of privacy
Personal
autonomy
Emotional
release
Self-evaluation
Limited &
protected
communication
Need to integrate
experiences into
Share confidences and
meaningful
Westin,
Alanpattern;
F. 1970. Privacy
and freedom.
London:
intimacies
only with
those one
essential
for creativity
trusts
Bodley
Head.
Individual privacy versus
individual secrecy
Privacy
Allowed and in some
cases required for
socially-sanctioned acts.
Stress reducing.
Secrecy
Involves
socially proscribed acts.
Stress inducing.
Margulis, Stephen T. 1977. Conceptions of privacy: current status and next steps. Journal
of social issues 33(3):5-21, p. 10.
Margulis, Stephen T. 2003. Privacy as a social issue and behavioral concept. Journal of
social issues 59(2):243-261.
Election day
Us
Us
Us
Us
Them
Us
On the network news:
Ayman al-Zawahiri
So you do a search . . .
A few days later . . .
Fourth Amendment
The right of the people to be secure in
their persons, houses, papers, and
effects, against unreasonable searches
and seizures, shall not be violated, and
no Warrants shall issue, but upon
probable cause, supported by Oath or
affirmation, and particularly describing
the place to be searched, and the
persons or things to be seized.
General warrants (1)
•
•
•
•
No specific individual
No specific crime
No specific place to be searched
No specific items to be sought
• Illegal according to Sir Edward Coke’s
Institutes of the Lawes of England (first
published 1642 and 1644)
• Illegality confirmed by Sir Matthew Hale
• Illegality confirmed by Sir William
Blackstone
General warrants (2)
• Suspicion of crime related to
government revenue
• Used against anyone who dared to
challenge or limit the authority of
Parliament or the crown
• John Wilkes (member of Parliament)
• Anonymously wrote critical essay
published in North Briton
• General warrant leads to massive
arrests, Wilkes ► Tower of London
Writs of assistance
• Any customs official could enter “any
House, shop, Cellar, Warehouse or
Room or other Place...”
• Seize unaccustomed goods
• Lasted for the life of the sovereign
under which it was issued plus six
months
• According to John Adams, major
factor in seeking American
Independence
Amendment IX
(the compromise)
The enumeration in the Constitution,
of certain rights, shall not be
construed to deny or disparage others
retained by the people.
Discussion question:
Why do we need
surveillance?
Need for surveillance (1)
Need for surveillance (2)
Need for surveillance (2)
Need for surveillance (2)
Train
Depart
Arrive
1
2
2:30 p.m. 6:30 p.m.
3:30 p.m. 8:00 p.m.
Beniger, James R. 1986. The control revolution: technological and
economic origins of the Information Society. Cambridge, Mass.: Harvard
University Press.
Surveillance in a transforming
society
Zuboff, Shoshana. 1988. In the age of the smart machine: the future
of work and power. New York: Basic Books.
Roles of Surveillance (1)
Used to catch the criminals
Necessitated by technology
Facilitated by technology
Used as means to control
workers
Roles of surveillance (2)
Provision of services (Social Security)
Allows participation (Voter registration)
Protection against threat
Means of social control
• Discover and rout out deviance
• Threat of surveillance used to
promote compliance with the law
Routing out “deviants”
Round-up of Pennsylvania Quakers
(1777)
Sedition Act of 1798
Espionage Act of 1917 – 1918 amend.
Internment of persons of Japanese
ancestry—WW II
Surveillance - Plague model
Highly visible
Isolation and
observation
Social control
Foucault, Michel. 1995. Discipline and punish: the birth of the
prison. New York: Vintage Books.
Surveillance—Panopticon model
Jeremy Bentham
•
•
•
•
Legal theorist
Rationalism
Utilitarianism
Eccentric
Jeremy Bentham’s Panopticon
cells
entry
walkway
inspector’s
lodge
Panopticon society
Communication Interception
1830s
Telegraph
invented
1860s
Wiretapping
during
Civil War
1870s
Telephone
invented
1880s
First reports
of
wiretaps
in press
1960s
Packet
switching
Packet
sniffers
Re-thinking constitutional
privacy
Hearings on
1964surveillance activities
U.S. Senate
by federal agencies;
Long Subcommittee first looked at IRS
1965
Griswold v. Connecticut
381 U.S. 479
Not on wire-tapping.
"Zone of privacy"
created by 1st, 3rd,
4th, 5th, and 9th
amendments
No warrantless wiretapping in
criminal cases
1967
Katz v. United States
389 U.S. 347
Congress Acts
1968
The Omnibus Crime Control
and Safe Streets Act of 1968
(“Federal Wiretapping Act“),
U.S. Code
18 USC Section 2510 et seq.
Wiretapping illegal but when crime has been or
is being committed law enforcement can, with a
warrant, engage in wiretapping for limited
periods. Provides judicial oversight for law
enforcement wiretapping.
National security wiretapping
1972
U.S. v. U.S. District Court
for the Eastern District of Michigan
“Keith”
“the customary Fourth Amendment
requirement of judicial approval before
initiation of a search applies in
domestic security cases”
19
50
19
52
19
54
19
56
19
58
19
60
19
62
19
64
19
66
19
68
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70
19
72
19
74
19
76
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78
19
80
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84
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86
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88
19
90
19
92
19
94
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96
19
98
20
00
20
02
20
04
20
06
Articles in the New York Times
with the word “Orwellian”
90
80
70
60
1974
(major Watergate revelations)
50
40
30
20
10
0
Information Privacy
Privacy Act of 1974
Privacy Act of 1974
• Government should be more open
about data it keeps on individuals.
• Individuals have a right to see
information the government collects
and to correct data that is incorrect.
• Limits on information that can be
collected and uses of that
information
• Limits on external disclosures of
information collected
FISA
1978
Foreign Intelligence
Surveillance Act
U.S. Code
50 USC Sections 1801-1863
Electronic mail
1993
ECPA
Electronic
Communications
Privacy Act
Addressed the need to protect e-mail.
ECPA
§ 2511. Interception and disclosure of wire, oral,
or electronic communications prohibited
§ 2701. Unlawful access to stored
communications
ECPA
(c) Exceptions.— Subsection (a) of this section
does not apply with respect to conduct
authorized— (1) by the person or entity providing
a wire or electronic communications service;
(2) by a user of that service with respect to a
communication of or intended for that user; or
(3) in section 2703, 2704 or 2518 of this title.
September 11, 2001
Congress Acts
USA PATRIOT Act
Uniting and Strengthening America
by Providing Appropriate Tools
Required to Intercept and
Obstruct Terrorism
Public law 107-56; 155 Stat. 272.
Path to the USA PATRIOT Act
MATA/ATA
(DOJ Bill)
Rep. James
Sensenbrenner
H.Res.
264
Asst. Atty. Gen.
Viet Dinh
House
Senate
H.R. 2975
USA Act
S. 1510
USA Act
Sen. Patrick
Leahy
Judiciary Comm.
H.R. 3108
H.R. 3162
USA PATRIOT Act
Signed into law by
President George W.
Bush October 26,
2001
The USA PATRIOT Act
H.R. 3162
The Purpose
To deter and punish terrorist
acts in the United States and
around the world, to enhance
law enforcement investigatory
tools, and for other purposes.
The USA PATRIOT Act
The Language
SEC. 218. FOREIGN INTELLIGENCE
INFORMATION.
Sections 104(a)(7)(B) and section
303(a)(7)(B) (50 U.S.C. 1804(a)(7)(B) and
1823(a)(7)(B)) of the Foreign Intelligence
Surveillance Act of 1978 are each
amended by striking `the purpose' and
inserting `a significant purpose'.
The U.S. Code
Sections 104(a)(7)(B) and section 303(a)(7)(B) (50
U.S.C. 1804(a)(7)(B) and 1823(a)(7)(B)) of the Foreign
Intelligence Surveillance Act of 1978 are each
amended by striking `the purpose' and inserting `a
significant purpose'.
TITLE 50 > CHAPTER 36 > SUBCHAPTER I > § 1804.
Applications for court orders
(7) a certification …
(B) that a
the
significant
purpose of
purpose
the surveillance
of the
is to
obtain foreign
surveillance
is intelligence
to obtain foreign
information;
intelligence
information;
Investigative powers in US
Code – After USA PATRIOT Act
1968
1978
Federal
Wiretapping
Act
Foreign
Intelligence
Surveillance
Act
Provisions in the PATRIOT Act
Computer communications
takeover
Hacker’s
Computer
Intermediary
Computer
Victim
Computer
Before PATRIOT Act:
Operator of intermediary computer could not allow law
enforcement access to hacker’s communication on intermediary
Provisions in the PATRIOT Act
Roving wiretaps in FISA cases
Wiretaps can move from
telephone to telephone and
jurisdiction to jurisdiction
without getting additional
warrants
Problem: Law enforcement can
wiretap any telephone used by
a suspect even when not being
used by the suspect
The USA PATRIOT Act
The Complaints— Records vulnerable
Section 215—Amending FISA 501(a)
The Director of the [FBI] 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.
The USA PATRIOT Act
The Complaints—Freedom of Speech
Section 215—Amending FISA 501(d)
No person shall disclose to any other
person (other than those persons
necessary to produce the tangible things
under this section) that the Federal
Bureau of Investigation has sought or
obtained tangible things under this
section.
ALA on government intrusion
“The First Amendment’s guarantee
of freedom of speech and of the
press requires that the
corresponding rights to hear what
is spoken and read what is written
be preserved, free from fear of
government intrusion, intimidation,
or reprisal.”
ALA on the PATRIOT Act
“The American Library Association
(ALA) opposes any use of
governmental power to suppress the
free and open exchange of knowledge
and information or to intimidate
individuals exercising free
inquiry…ALA considers that sections
of the USA PATRIOT ACT are a
present danger to the constitutional
rights and privacy rights of library
users.”
Department of Justice
Department of Justice
USA PATRIOT Act & Libraries
• 2005– FBI presents National Security
letter and demands “any and all
subscriber information, billing
information, and access logs of any
person or entity” associated with a
specified IP address during a specified
period
• Librarians fought gag order in court
• Librarians speak out
Library Awareness Program
• Begun during Cold War*
• Desire to restrict access to unclassified
scientific information by foreign nationals
• Desire to recruit librarians to report on
“foreigners”
• Agent told librarians to report name and
reading habits of anyone with a foreign
sounding name or foreign sounding accent
• Librarians who criticized program were
investigated
*Curt Gentry gives onset year as 1962: Gentry, Curt. 1991. J. Edgar
Hoover: the man and the secrets. New York: Norton., pp. 759-760.