Justice Department Criticized for Patriot Act Implementation, Says Library Controversy Made It Hesitate

-- Library Journal, 3/12/2007

In a lengthy report issued Friday, the Office of the Inspector General (OIG) criticized the Department of Justice (DoJ) for lax oversight of National Security Letters (NSLs), the scope of which were expanded by the USA PATRIOT Act. (The department unsuccessfully sought NSLs in the "John Doe" case involving four Connecticut librarians.) In another report, the OIG reviewed the Federal Bureau of Investigation's use of Section 215 orders—which allow for the search of business records, including from libraries—and concluded that the public controversy over the provision caused the FBI to withdraw a Section 215 request when seeking records from a library.

The DOJ, according to spokesman Dean Boyd said the latter report indicated that it was responsible in using its authority. Regarding NSLs, however, the DOJ, according to the report, sought personal data without proper authorization and improperly obtained telephone records in non-emergency circumstances in the face of Congressional criticism. Attorney General Alberto Gonzales ordered numerous changes recommended by the OIG, including new internal audits and training.

Despite the initial concern about Section 215, the American Library Association (ALA) has pointed to the NSLs as a more likely avenue to obtain library records in an investigation. ALA President Leslie Burger commented Friday, "The ALA thanks Congress for doing its Constitutional duty by beginning an investigation into this matter, and further calls upon Congress to tighten language in the PATRIOT Act to minimize these sorts of privacy violations and to provide thorough, ongoing oversight into the FBI's surveillance activities."

In seeking records under Section 215, an FBI case agent typically fills out a request form, which after review by managers, goes to the Office of General Counsel's National Security Law Branch (NSLB). According to the report (p. ix), "We found that an NSLB supervisor would not permit the request to go forward because of the controversy surrounding Section 215 requests for information from libraries. Once the field office was advised that NSLB would not send the application… the field office obtained the information through other investigative means." The report said that "the FBI did not obtain Section 215 orders for library records from 2002 through 2005, in part because the few applications for such orders were withdrawn while undergoing the review process…" However, the FBI began using Section 215 authority more widely in 2006, and it's unknown how often NSLs have been used to gather information from libraries.