Wednesday, June 7, 2017

Trump FBI Director Nominee Christopher Wray Defended Library Record Probes

During an October 21, 2003 Congressional hearing concerning US Terrorism prevention efforts, President Trump's FBI Director nominee Christopher Wray defended the controversial Patriot Act section related to library record borrowings.

According to a 2003 Congressional Quarterly Press article referring to the (perhaps now revised) Section 215 of the Patriot Act, Kenneth Jost wrote, "The section has been dubbed the 'angry librarian' provision because it could be used to obtain records of a person's library borrowings," and that "Justice Department officials appearing as witnesses at the hearing also rejected criticisms of the law."

"The various misperceptions that have been perpetuated about the Patriot Act are disturbing and simply wrong," Jost noted Christopher Wray, who was then the "assistant attorney general for the criminal division", said at the hearing.

Declaring, "We should not allow libraries or any other businesses to become safe havens for terrorist planning, financing, or communication," Wray told Congress in his opening statement that day:
"As you know, several groups including the ACLU, have claimed that Section 215 of the Patriot Act allows the government to investigate the library habits of ordinary citizens. This misinformation has apparently led a number of librarians to warn patrons needlessly of possible government monitoring. This overreaction has only led to further public confusion and misunderstanding about the scope of the Patriot Act.

The suggestion that federal agents are snooping on innocent citizens' reading habits is inflammatory and simply untrue. First, the Patriot Act explicitly protects Americans' First Amendment rights by providing that an investigation may not be conducted 'of a United States person solely upon the basis of activities protected by the first amendment to the Constitution of the United States.' Second, terrorism investigators have no interest in the reading habits of ordinary Americans. As the Attorney General pointed out recently, as of September 18, 2003, this provision had never been used. The House Judiciary Committee also concluded in its October 17, 2002, press release that its 'review of classified information related to FISA orders for tangible records, such as library records, has not given rise to any concern that the [government's] authority is being misused or abused.'

But historically, terrorists and spies have used libraries to plan and carry out activities that threaten our national security. For example, Brian Patrick Regan, who was convicted last February of offering to sell U.S. intelligence information to Iraq and China, used a computer at a local public library to look up addresses for Iraqi and Libyan embassies overseas. Similarly, in a recent domestic terrorism criminal case, a grand jury served a subpoena on a bookseller to obtain records showing that a suspect had bought a book giving instructions on how to build a particularly unusual detonator that had been used in several bombings. This was important evidence identifying the suspect as the bomber. We should not allow libraries or any other businesses to become safe havens for terrorist planning, financing, or communication.

The Patriot Act ensures that business records can be obtained in a national security investigation with the approval of a federal judge. Under the Patriot Act, the government can now ask a federal court to order production of the same type of records available through grand jury subpoenas, but only after the government shows that the records are sought for an authorized foreign intelligence investigation or to protect against international terrorism or clandestine intelligence activities. Moreover, Congress also exercises careful and ongoing oversight: Every six months, the Attorney General must 'fully inform' Congress of how Section 215 has been used."
Jost's article added: "Echoing Attorney General Ashcroft's speeches in defense of the law, Wray pointed out that the law required judicial approval for records searches and delayed notification search warrants. He also noted that no library borrowing records have been sought under the law, but said that such information could be useful in some cases in identifying and thwarting suspected terrorists."

"For example, you could easily have -- and this is a hypothetical based on the kinds of things that come up on a day-to-day basis at the FBI and the Justice Department, CIA and other places -- you could have a foreign intelligence service that has a raid in a safe house overseas somewhere, and in the course of that raid, comes up with records that -- for example, there might be rental-car records or job applications, tenancy documents of some sort," Wray said at the hearing (which can be viewed on the CSPAN clip below). "There might even be a library book, for example, from the DC library."

CSPAN video from the same hearing shows former Democratic Wisconsin Senator Russ Feingold noting, "Secondly, I do acknowledge that the administration has indicated that they have not used the Section 215 library provisions, provisions that they describe as essential to the fight against terrorism."

But Feingold wondered: "Now, which is it? That they never used them or that they are essential? And what is the objection then to reasonable modifications if they haven't even been used?"

Reporting for ProPublica in 2013, Justin Elliott wrote, "Civil liberties groups and librarians’ associations, which have long been fiercely protective of reader privacy, quickly raised fears of the FBI using that authority to snoop on circulation records."

Elliott added, "Even before the Patriot Act passed, the American Library Association warned members of Congress that the business records provision under consideration would 'eviscerate long-standing state laws and place the confidentiality of all library users at risk.'"

"So has the government ever used Section 215 to get library records?" Elliott asked, before answering his own question: "We don’t know."

Elliott's 2013 story continued: "Testifying before Congress in March 2011, a Justice Department official said Section 215 'has never been used against a library to obtain circulation records.' But as with so much else about the Patriot Act, how often or even whether the government has obtained library records is secret. Section 215 imposes a gag order on people or businesses who are compelled to produce records."

"The FBI has also used a separate Patriot Act provision, issuing what is known as a national security letter, to seek library patron records," Elliott reported in 2013. "One such episode prompted a successful court challenge by Connecticut librarians in 2005-06."

In his April 7, 2003 New York Times article, - "Some Librarians Use Shredder to Show Opposition to New F.B.I. Powers" - Dean E. Murphy wrote, "In a survey sent to 1,500 libraries last fall by the Library Research Center at the University of Illinois, the staffs at 219 libraries said they had cooperated with law enforcement requests for information about patrons; staffs at 225 libraries said they had not."

On June 7, 2017, after Trump tweeted about picking Wray, Reason's Scott Shackford blogged: "On the negative side of the ledger, Wray has been a major defender of the Patriot Act and the expansion of surveillance authority that it granted the federal intelligence community. In Senate Judiciary Committee testimony in 2003, he praised the act as a tool for fighting terrorism and pushed back against 'myths' that the law would be used to authorize surveillance against U.S. citizens. It's interesting to read that old defense in light of what we know now. Remember when one of the bigger worries was that the feds would use the Patriot Act to track what library books we were checking out?."

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