WASHINGTON — A little-remarked feature of pending legislation on domestic surveillance has provoked alarm among university and public librarians who say it could allow federal intelligence-gathering on library patrons without sufficient court oversight.
Draft House and Senate bills would allow the government to compel any “communications service provider” to provide access to e-mails and other electronic information within the United States as part of federal surveillance of non-U.S. citizens outside the country.
The Justice Department has previously said that “providers” may include libraries, causing university and library groups to worry that the government’s ability to monitor people targeted for surveillance without a warrant would chill students’ and faculty members’ online research activities.
“It is fundamental that when a user enters the library, physically or electronically,” said Jim Neal, the head librarian at Columbia University, “their use of the collections, print or electronic, their communications on library servers and computers, is not going to be subjected to surveillance unless the courts have authorized it.”
Under the legislation, the government could monitor a non-U.S. citizen overseas participating in an online project through a U.S. university library, and gain access to the communications of all the project participants with that surveillance target, said Al Gidari, a lawyer who represents the Association of Research Libraries and the American Library Association.
The bills, which would replace a temporary law amending the Foreign Intelligence Surveillance Act, would not require the government to demonstrate “probable cause” that the foreign person targeted is a terrorist or a spy or to let the FISA court, which grants surveillance warrants, know that the tap will be on a library. Under the Senate bill, a general surveillance program may be authorized yearly by the attorney general and the director of national intelligence. The House’s version would require the FISA court to authorize surveillance.
The librarians said their concern about such monitoring is rooted in recent history.
In 2005, FBI agents handed a national security letter to a Connecticut librarian, and demanded subscriber, billing and other information on patrons who used a computer at a branch library. NSLs can be approved by certain FBI agents without court approval. The agents ordered the librarian to keep the demand secret. But he refused to produce the records, and his employer sued, challenging the gag order. A federal judge in 2005 declared the gag order unconstitutional.
Librarians cried out over the issue and in March 2006 won language in the USA Patriot Act that specified that libraries acting as book-lenders not be subject to NSLs. But FBI Director Robert Mueller told the Senate Judiciary Committee in 2006 that “a library is only subject to an NSL if it provides electronic communication services.”
Today, many universities — and their libraries — can be considered Internet service providers, because they run private Internet networks allowing students and faculty to send e-mail, conduct online research and engage in online chats without touching the public system, experts said.
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