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Librarian's brush with FBI shapes her view of the USA PATRIOT Act
by Joan Airoldi, USA Today
May 17, 2005
Joan Airoldi, a librarian, is director of the library district in Whatcom County, Washington.
It was a moment that librarians had been dreading.
On June 8, 2004, an FBI agent stopped at the Deming branch of the Whatcom County Library System in northwest Washington and requested a list of the people who had borrowed a biography of Osama bin Laden. We said no.
Librarian wins award for standing up to FBI
by Rick Olivo, The Daily Press [Ashland, WI]
April 15, 2005
The former head of Ashland's Northern Waters Library System has been named as winner of a prestigious First Amendment award.
Joan Airoldi, a librarian and library director in Whatcom County in rural Washington State, challenged an FBI effort to search patron records as an unconstitutional fishing expedition by federal officials.
Because of her actions, Airoldi, who lived with her husband, Mike, in Mellen for many years, has been named as the recipient of this year's prestigious PEN/Newman's Own First Amendment Award.
PEN is a nation-wide organization of writers and editors working to advance literature, defend free expression and further international literary fellowship. It was first established in 1923. This is the thirteenth anniversary of the PEN/Newman's Own First Amendment Award. It was established by actor Paul Newman and author A. E. Hotchner to honor a U.S. resident who has fought courageously, despite adversity, to safeguard the First Amendment right to freedom of expression as it applies to the written word.
Airoldi will receive the $25,000 prize at PEN's annual gala on April 20, 2005 at the American Museum of Natural History in New York City. Airoldi says she plans to donate the funds to establish a library foundation in Whatcom County.
On June 8, 2004, an FBI agent visited the Deming branch of the Whatcom County Library System in rural Washington, a library not much larger than a family home. The agent demanded the names of all library patrons who had borrowed the book "Bin Laden: The Man Who Declared War on America."
The FBI made the request after a reader contacted the agency to report that someone had left a handwritten note in the margin of the book that said, "If the things I'm doing is considered a crime then let history be a witness that I am a criminal. Hostility toward America is a religious duty and we hope to be rewarded by God," a nearly direct quote of a statement Osama Bin Laden made in a 1998 interview.
As a librarian and the Director of the Whatcom County Rural Library District, Joan Airoldi organized and guided the library's efforts to fight the request, protecting patrons' right to read what they wish free of government scrutiny.
The Deming branch refused to provide information to the visiting agent, and the library system informed the FBI that no information would be released without a subpoena or court order. The Library Board then voted to fight any subsequent subpoena in court.
On June 18, a grand jury subpoena was served requesting the names and any other identifying information of patrons who had borrowed the Bin Laden biography since November 15, 2001.
At a special meeting of the Board, the library resolved to seek a motion to quash the subpoena on the grounds that the request infringed on the First Amendment rights of readers. The board asserted that libraries have the right to disseminate information freely and confidentially, without the chilling effects of disclosure and that Washington State's library confidentiality laws protected the records. On July 14, the library learned that the FBI had withdrawn the Grand Jury subpoena.
For Airoldi, the FBI's decision to drop the investigation was an important victory.
"Libraries are a haven where people should be able to seek whatever information they want to pursue without any threat of government intervention," said Airoldi.
Nevertheless, the thought of doing legal battle with the FBI was a daunting and frightening prospect, Airoldi admitted, but one that needed to be faced.
"It is scary, but what is even scarier is the notion that someone can get hold of library records. I think that people need to be aware of the threat that we have right now for issues of confidentiality, because of the PATRIOT Act, and for that reason our Library Board took a stand on this, and wanted to talk about it," she said. "We want people to know that these things are going on."
Airoldi said the problem with the PATRIOT Act from her perspective was that it forced libraries to become a part of a grand federal investigative scheme.
"We do not want to be an agent of the government that would supply library records just because there was something that might be suspicious about a person's reading habits," she said.
Airoldi said libraries have always been places where what a person reads is considered confidential.
"We would not even dream about giving out any kind of library records. The library board was totally trying to act within the laws of our land; we are law-abiding citizens. We simply wanted to have a fair system of checks and balances through the judicial system. But the PATRIOT Act has said, no you don't have to do that any more," she said.
Airoldi said there have been "a few" comments accusing her and the library board of being unpatriotic. However, she said well over 90 percent of her contacts regarding the matter have been positive.
PEN Freedom to Write Program Director Larry Siems said this year's PEN/Newman's Own Award selection could not be more timely.
"This year Congress will decide whether to extend the provision of the US PATRIOT Act that undermines the ability of libraries and bookstores to fend off unjustified searches of their records," Siems said.
Siems said the library's action was nothing less than a grass-roots defense of the first amendment of the Constitution.
"What Joan Airoldi and her staff and Board did standing up to an unwarranted intrusion by federal agents into the privacy of ordinary Americans was heroic in itself. At the same time, their success vividly illustrates why the protections states and courts have carved out for reading records are so essential," he said.
However, Siems said the outcome could have been far different if the government had taken a different tack.
"If the FBI had returned not with a Grand Jury subpoena but with a PATRIOT Act order, the library would have been unable to challenge the request in court, and the reading records of law-abiding patrons may well have made their way into FBI files," he said. "Had the FBI secured a Section 215 order from the secret Foreign Intelligence Surveillance Court, the search would have gone forward, and nobody, not even the patrons whose records had been examined would have known that it had happened."
Siems said a series of Supreme Court rulings have made clear that the first amendment applies not only to the freedom to speak, but the freedom to get information and to do so free of government surveillance or scrutiny. He said libraries have been at the forefront of that fight.
"It was librarians who helped bring to an end the FBI's infamous library awareness program during the Cold War and who led efforts to pass library confidentiality protections in 48 of 50 states," he said.
Siems said the Government had many tools before the passage of the PATRIOT Act with which to counter terrorism directed at American citizens.
"What the PATRIOT Act does is to break down a lot of the protections that keep the records of ordinary, law abiding citizens, who are not suspected of any kind of wrongdoing from coming under FBI scrutiny," he said. "There is no way to challenge a section 215 subpoena and the FBI does not have to show that the records they are looking for are those of someone who is suspected of terrorism. They just have to say they have some relevance to a terrorism investigation."
Siems called the actions of the FBI in the Whatcom County Library System case a "fishing expedition."
"The government had the option of going to court and proving that they needed these records, but clearly they didn't feel the records were that crucial to any imminent threat of a terrorist attack," he said.
"Joan Airoldi and her staff and board acted in this great, professional tradition in a fearful time and extremely charged atmosphere. We are honored to be able to salute her and the Whatcom County Library System."
We did not take this step lightly. First, our attorney called the local FBI office and asked why the information was important. She was told that one of our patrons had sent the FBI the book after discovering these words written in the margin: “If the things I'm doing is considered a crime, then let history be a witness that I am a criminal. Hostility toward America is a religious duty and we hope to be rewarded by God.”
We told the FBI that it would have to follow legal channels before our board of trustees would address releasing the names of the borrowers. We also informed the FBI that, through a Google search, our attorney had discovered that the words in the margin were almost identical to a statement by bin Laden in a 1998 interview.
Undeterred, the FBI served a subpoena on the library a week later demanding a list of everyone who had borrowed the book since November 2001.
Our trustees faced a difficult decision. It is our job to protect the right of people to obtain the books and other materials they need to form and express ideas. If the government can easily obtain records of the books that our patrons are borrowing, they will not feel free to request the books they want. Who would check out a biography of bin Laden knowing that this might attract the attention of the FBI?
It is for this reason that libraries across the country have taken a strong stand against government intrusion. In the 1980s, it was revealed that the FBI had engaged in a secret “library awareness” program to track the books borrowed by patrons who had emigrated from communist countries. Determined to prevent such activities in the future, librarians helped pass laws in 48 states that bar the surrender of customer information except in compliance with a subpoena.
For our trustees, this sense of responsibility to protect libraries as institutions where people are free to explore any idea ran up against their desire to help their government fight terrorism. But they were resolute and voted unanimously to go to court to quash the FBI subpoena. Fifteen days later, the FBI withdrew its request.
But there is a shadow over our happy ending. Our experience taught us how easily the FBI could have discovered the names of the borrowers, how readily this could happen in any library in the USA. It also drove home for us the dangers that the "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism" (The USA PATRIOT Act) poses to reader privacy.
Since the passage of the PATRIOT Act in October 2001, the FBI has the power to go to a secret court to request library and bookstore records considered relevant to a national security investigation. It does not have to show that the people whose records are sought are suspected of any crime or explain why they are being investigated. In addition, librarians and booksellers are forbidden to reveal that they have received an order to surrender customer data.
Our government has always possessed the power to obtain library records, but that power has been subject to safeguards. The PATRIOT Act eliminated those safeguards and made it impossible for people to ask a judge to rule whether the government needs the information it is after. In the current debate over extending or amending the PATRIOT Act, one of the key questions is whether a library or any other institution can seek an independent review of an order. Even the attorney general conceded in a recent oversight hearing that this is a problem with the law as written.
Fortunately for our patrons, we were able to mount a successful challenge to what seems to have been a fishing expedition. If it had returned with an order from a secret court under the PATRIOT Act, the FBI might now know which residents in our part of Washington State had simply tried to learn more about bin Laden.
With a PATRIOT Act order in hand, I would have been forbidden to disclose even the fact that I had received it and would not have been able to tell this story.
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