The USA PATRIOT Act The USA PATRIOT Act and the Libraryand 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 themselveswhen, how, and to what extentinformation 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 ofthe individual to social participation, privacy is the voluntary and temporarywithdrawal of a person from the general society through physical or psychological means, either in a state of solitude or, when amonglarger 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 othersand from the processes of surveillance that every society sets in order to enforce its social norms.

Westin, Alan F. 1970. Privacy and freedom. London: Bodley Head.

Westin's privacy theory: 4 functions of privacy

Personal autonomy

Emotionalrelease

Self-evaluationLimited & protected

communication

Desire to avoid being

manipulated or dominated

wholly by others

Release from tensionsof life in society

requires release from pressure of playing

social roles

Need to integrate experiences into

meaningful pattern; essential for creativity

Share confidences and intimacies only with those

one trusts

Individual privacy versus individual secrecy

PrivacyAllowed and in somecases required for

socially-sanctioned acts.Stress reducing.

SecrecyInvolves

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.

Us UsUsUs

Election day

UsThem

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 enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

(the compromise)

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 2:30 p.m. 6:30 p.m.

2 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 Surveillance in a transforming societysociety

Zuboff, Shoshana. 1988. In the age of the smart machine: the future of work and power. New York: Basic Books.

Roles of Surveillance (1)Roles of Surveillance (1)

Used to catch the criminals

Used as means to control workers

Necessitated by technology

Facilitated by technology

Roles of surveillance (2)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”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 modelSurveillance - Plague model

Isolation and observation

Social control

Highly visible

Foucault, Michel. 1995. Discipline and punish: the birth of the prison. New York: Vintage Books.

Surveillance—Panopticon model

• Legal theorist

• Rationalism

• Utilitarianism

• Eccentric

Jeremy Bentham

cells

inspector’s lodge

entry

walkway

Jeremy Bentham’s Panopticon

Panopticon societyPanopticon society

Communication Interception

1880sFirst reports

of wiretaps in press

1870sTelephoneinvented

1860sWiretapping

duringCivil War

1830sTelegraphinvented

Packet sniffers

1960sPacket

switching

Re-thinking constitutional privacy

1964-U.S. Senate

Long Subcommittee

Hearings on surveillance activities by federal agencies; first looked at IRS

1965Griswold 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 No warrantless wiretapping in criminal casescriminal cases

1967Katz v. United States

389 U.S. 347

Congress Acts

1968The Omnibus Crime Control

and Safe Streets Act of 1968 (“Federal Wiretapping Act“),

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.

U.S. Code18 USC Section 2510 et seq.

National security wiretappingNational security wiretapping

1972U.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”

Articles in the New York Times with the word “Orwellian”

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10

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1950

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1974(major Watergate revelations)

Information Privacy

Privacy Act of 1974

Privacy Act of 1974• Government should be more open Government should be more open

about data it keeps on individuals.about data it keeps on individuals.

• Individuals have a right to see Individuals have a right to see information the government collects information the government collects and to correct data that is incorrect. and to correct data that is incorrect.

• Limits on information that can be Limits on information that can be collected and uses of that collected and uses of that information  information  

• Limits on external disclosures of Limits on external disclosures of information collected information collected

FISA

1978Foreign Intelligence

Surveillance Act

U.S. Code50 USC Sections 1801-1863

Electronic mail

1993ECPA

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 andObstruct Terrorism

Public law 107-56; 155 Stat. 272.

Senate

Path to the USA PATRIOT ActPath to the USA PATRIOT Act

H.R. 3162USA PATRIOT Act

H.R. 2975USA Act

S. 1510USA Act

H.R. 3108

MATA/ATA(DOJ Bill)

House

Asst. Atty. Gen. Viet Dinh

Rep. James Sensenbrenner

Sen. Patrick Leahy

Judiciary Comm.H.Res.

264

Signed into law by President George W. Bush October 26, 2001

The USA PATRIOT ActThe USA PATRIOT Act

To deter and punish terrorist acts in the United States and around the world, to enhance law enforcement investigatory tools, and for other purposes.

H.R. 3162

The Purpose

The USA PATRIOT ActThe USA PATRIOT Act

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 Language

The U.S. CodeThe U.S. CodeSections 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 the purpose of the surveillance is to obtain foreign intelligence information;

(7) a certification … (B) that a significant purpose of the surveillance is to obtain foreign intelligence information;

Investigative powers in US Investigative powers in US Code – After USA PATRIOT ActCode – After USA PATRIOT Act

1968

Federal Wiretapping

Act

1978

Foreign Intelligence

Surveillance Act

Provisions in the PATRIOT ActProvisions in the PATRIOT Act

Computer communications

Hacker’sComputer

VictimComputer

IntermediaryComputer

takeover

Before PATRIOT Act:Operator of intermediary computer could not allow law

enforcement access to hacker’s communication on intermediary

Provisions in the PATRIOT ActProvisions 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 ActThe USA PATRIOT Act

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 Complaints— Records vulnerable

The USA PATRIOT ActThe USA PATRIOT Act

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.

The Complaints—Freedom of Speech

ALA on government intrusionALA 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 ActALA 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 JusticeDepartment of Justice

Department of JusticeDepartment of Justice

USA PATRIOT Act & LibrariesUSA 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 ProgramLibrary 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.