In his November 12 nationally syndicated column, National Review Online editor-at-large Jonah Goldberg stated that the controversy over government access to library records under the USA Patriot Act was due to "exaggerations" by Democratic public officials. Goldberg asserted that under the act, "not one library was ever searched. Ever." However, it is unlikely that Goldberg could accurately make such an assertion, since the Patriot Act prohibits libraries that have been served with a search warrant from publicly disclosing that information.
The American Library Association (ALA) has prepared a detailed "Analysis of the USA Patriot Act related to Libraries," outlining the act's impact on preexisting access-to-records provisions. According to the ALA:
Section 215: Access to Records Under Foreign Intelligence Security Act (FISA)
- Allows an FBI agent to obtain a search warrant for "any tangible thing," which can include books, records, papers, floppy disks, data tapes, and computers with hard drives.
- Permits the FBI to compel production of library circulation records, Internet use records, and registration information stored in any medium.
- Does not require the agent to demonstrate "probable cause," the existence of specific facts to support the belief that a crime has been committed or that the items sought are evidence of a crime. Instead, the agent only needs to claim that he believes that the records he wants may be related to an ongoing investigation related to terrorism or intelligence activities, a very low legal standard.
- Libraries or librarians served with a search warrant issued under FISA rules may not disclose, under of penalty of law, the existence of the warrant or the fact that records were produced as a result of the warrant. A patron cannot be told that his or her records were given to the FBI or that he or she is the subject of an FBI investigation.
- Overrides state library confidentiality laws protecting library records.
From Goldberg's November 12 column:
An entire phantasmagoria of tyrannies, oppressions and injustices were alleged to have been spawned out of the hateful Patriot Act - most particularly the dreaded Section 215, which allowed the government to search library records.
Of course, not one library was ever searched. Ever. (And who really cares if one was, by the way?)
Such exaggerations have become scripture in many circles.
Goldberg made a similar assertion while covering the Democratic National Convention for USA Today. In response to a convention speech by then-U.S. Senate candidate Barack Obama (D-IL), who spoke about "federal agents poking around our libraries," Goldberg wrote in a July 28 opinion column: "No federal agents have searched libraries."
While the U.S. Justice Department has not made information regarding search warrants served on public libraries publicly available, law enforcement officials have made numerous visits to libraries since October 2001, when the Patriot Act was passed. According to a University of Illinois survey of libraries and the Patriot Act, federal and local law enforcement officials visited hundreds of libraries nationwide between October 2001 and October 2002:
In the year after the World Trade Center and Pentagon attacks, Federal and local law enforcement officials visited at least 545 (10.7%) libraries to ask for these [book-borrowing and Internet-usage] records. Of these, 178 libraries (3.5%) received visits from the FBI. The number of libraries queried fell significantly below the 703 libraries reporting such requests the year before the terrorist events. The actual number questioned in the past year may, however, be larger, because the USA Patriot Act makes it illegal for persons or institutions to disclose that a search warrant has been served.
The University of Illinois study also contradicted Goldberg's suggestion that no one would "really care" if library records were searched by law enforcement officials:
Almost 60 percent (59.9%) of librarians responding to the Library Research Center Poll stated they thought the secrecy provision is an abridgement of First Amendment rights. One in five (21.7%) librarians feels strongly enough that they state they probably or definitely would challenge a court order regarding information about a patron by disclosing a request that ordered non-disclosure.