Tomas A. Lipinski
Recent developments in the United States, a jurisdiction heretofore considered vesting its citizens with broad array of free speech rights, including the right to speak and to receive information and its concomitant right to read has undergone challenge in the past two years. The traditional loci for the exercise of these rights for many citizens, the library, the bookstore or newsstand, is now subject to scrutiny by the government and other plaintiffs. This is occurring not only in traditional physical spaces but also in virtual spaces. Three areas are discussed: the use of subpoena powers by aggrieved third parties to ascertain the identity of anonymous speakers on the Internet, the acquisition of online bookstore customers purchase records by law enforcement agencies, and intrusion into reading habits of library patrons by the USA PATRIOT Act and the recent U.S. Supreme Court decision upholding the Children’s Internet Protection Act (CIPA).
The prior work of the author discussing anonymous speech on the Internet and the use of subpoena powers by aggrieved third parties1 is briefly discussed and updated to included recent developments concerning copyright owners attempts to ascertain the identity of potential defendants.2 Furthermore, the impact of the RIAA (Recording Industry Association of America) efforts to control the copyright infringement occurring on college campuses is also discussed either through third party subpoena or the enlistment of the educational institution in monitoring traffic on its computer networks is assessed. 3
Next, the implications of the Tattered Cover, Inc. v. City of Thorton, 2002 Colo. LEXIS 269 (Sup. Ct 2002). While the Colorado Supreme Court preserved the rights of online bookstore customers when it determined that the Colorado constitution offered a source of broader privacy protection than did the U.S. Fourth Amendment, the case is significant for two reasons nonetheless. First, it demonstrates the patterns that law enforcement agencies use when investigating reading habits vis-à-vis purchase histories of suspects. Second, the result of the case is likely singular as many state high courts may be reluctant to look to its own constitution as similar cases arise. This might occur of one of two reasons: judicial restraint and underdeveloped body of precedent.
Finally, the reading habits of public library patrons are most impacted by two recent pieces of federal legislation. First, the Children’s Internet Protection Act and the recent Supreme Court decision in United States v. American Library Association, 2003 U.S. LEXIS 4799 (2003), upholding its provisions requires that public libraries, as a condition of receipt of federal funding, to place filters on computers with Internet access with result that many patrons will have access to far limited array of material. Moreover, the provisions in CIPA that allow libraries to “turn-off” the filter can only be made in response to a patron request. In other words patrons must first ask before they may access constitutionally protected material.
Most pernicious is the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 20014 or USA PATRIOT Act or the PATRIOT for short, a complex and detailed piece of legislation, amending dozens of federal statutes. In general, PATRIOT relaxes, so to speak, the standards under which surveillance activities may be undertaken in the name of thwarting domestic terrorism. For example, under PATRIOT section 218, amending the FISA (50 U.S.C. § 1804) an application for surveillance is now available if the federal investigator demonstrates that “a significant purpose of the surveillance is to obtain foreign intelligence information.” The pre-PATRIOT standard required that law enforcement demonstrate that the “sole or main purpose” of the surveillance was to gather foreign intelligence information; this “lessening the burden of proof” is subtle but no less significant. 5 “Considering the fact that the FISC [Foreign Intelligence Surveillance Court] has only turned down one surveillance application since its inception, it becomes even more likely that the court will authorize all forthcoming applications under this more lenient standard.”6
The most controversial section, at least for library advocates, is section 215, which appears ominous in its clear application to the library environment as it authorizes the Director of the FBI or his or her designee to “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.” “Instead of subpoenas, the act provides that such information will be sought via search warrants. The advantage for the FBI proceeding by search warrant rather than by subpoena is speed: While a party can wait and object to a grand jury subpoena before producing documents, compliance with a search warrant is immediate.”7 “[T]the ‘so-called’ search warrant is issued by a secret court. Once granted, it entitles the FBI to procure any library records pertaining to book circulation, Internet use or patron registration. Librarians can even be compelled to cooperate with the FBI in monitoring Internet usage.”8 Even more troubling, the library or librarian receiving such order is prohibited from disclosing its occurrence to anyone else as well.9 New section 50 U.S.C. § 501(d) commands that “[n]o 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.” Because of this, reports of library incidents of Section 215 investigations will be rather limited so do not expect to read about such investigations in the next issue of the OIF (Office for Intellectual Freedom) Newsletter, or an annual review of such occurrences in the same way the OIF reports on book challenges in libraries and schools. The implications for individual consumers, readers, of information as well as societyat large are discussed.
- Tomas A. Lipinski, To Speak or Not to Speak: Developing Legal Standards for Anonymous Speech on the Internet, 5 INFORMING SCIENCE 95 (2002).
- In re Verizon Internet Services, Inc., 2003 U.S. Dist. LEXIS 6778 (D.D.C. 2003).
- See, University Students Settle File-Swapping Law Suits, 7 The Copyright & New Media Law Newsletter, at 11 (2003); Hearing, U.S. House of Representatives, Judiciary Committee Subcommittee on Courts, the Internet, and Intellectual Property, February 26, 2003 on Peer-to-Peer Piracy on University Campuses.
- Pub. L. 107-56, 115 Stat. 272 (2001).
- Jennifer C. Evans, Hijacking Civil Liberties: The USA PATRIOT Act of 2001, 33 LOYOLA UNIVERSITY CHICAGO LAW JOURNAL 933, 972 (2002).
- Sharon H. Rackow, How the USA PATRIOT Act Will Permit Governmental Infringement Upon the Privacy of American in the Name of “Intelligence” Investigations, 150 UNIVERSITY OF PENNSYLVANIA LAW REVIEW 1651, 1675 (2002) (footnote omitted)
- Henry E. Hockeimer, Jr., USA Patriot Act is Broader than You Might Imagine: From Libraries to Universities to Trucking Companies, Sweeping Provisions of the Act change the Status Quo, NEW JERSEY LAW JOURNAL, April 15, 2002, (no pagination in LEXIS-NEXIS Legnew Library).
- Zara Gelsey, Big Brother Hits the Books, THE RECORDER, July 19, 2002, at 5.
- Henry E. Hockeimer, Jr., USA Patriot Act is Broader than You Might Imagine: From Libraries to Universities to Trucking Companies, Sweeping Provisions of the Act change the Status Quo, NEW JERSEY LAW JOURNAL, April 15, 2002, (no pagination in LEXIS-NEXIS Legnew Library) (“[L]ibraries are prohibited from disclosing to anyone other than counsel that the search warrant has been served and the nature of the documents obtained as a result of the search warrant.”).