Criticism Over Patriot Act Use

Still, Justice Department says library controversy caused hesitation

By Norman Oder -- Library Journal, 4/1/2007

In a lengthy report issued March 9, 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 DOJ unsuccessfully sought NSLs in the “John Doe” case involving four Connecticut librarians (see News, LJ 5/1/06, p. 22).

In another report issued the same day, the OIG reviewed the FBI’s use of Section 215 orders—which allow for the search of business records, including those 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 nonemergency circumstances.

That generated significant criticism. While Attorney General Alberto Gonzales announced numerous changes recommended by the OIG, including new internal audits and training, that likely will not stave off further Congressional investigation.

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, “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.”

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, “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.... [T]he 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215 orders for library records from 2002 through 2005, in part because the few applications for such orders were withdrawn while undergoing the review process....”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.