B  U L  L E  T I  N

of the American Society for Information Science and Technology         Vol. 29, No. 3        February/March 2003

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Annual Meeting Coverage

First Plenary Session

Openness, Privacy and National Security Post 9/11: A Debate
by Steve Hardin

Steve Hardin is associate librarian in the Cunningham Memorial Library at Indiana State University; Terre Haute, IN 47809; shardin@indstate.edu

“How do we balance the need for the free flow of information in a democratic society against the knowledge that terrorists can use that information against us?” That question was posed by José-Marie Griffiths of the University of Pittsburgh, who moderated the opening plenary session of the 2002 ASIST Annual Meeting in Philadelphia. Although billed as a debate, the session developed more into a discussion of this and related questions by Lee Strickland, an attorney and intelligence officer with the United States government currently assigned to the University of Maryland as a visiting professor, and Thomas Blanton, executive director of the National Security Archive, an independent non-governmental user of the Freedom of Information Act.

Post 9/11 Legislation

Griffiths posed the first question to Strickland: “How has legislation passed since 9/11 affected us?” He says that the most important piece of legislation passed since the attacks, the United and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA Patriot Act), makes a number of changes in the law enforcement arena. Many of them are what he describes as “housekeeping changes,” updating the law to reflect technological innovations.

There’s a separate area of intelligence law which regulates intelligence collection. Section 215 of the Foreign Intelligence Surveillance Act (FISA) gives the government the authority to look at certain business records. That authority, he says, may now be expanded to include any tangible item for any business. This development could have a major impact on any information-centered business. There have also been changes in banking laws, with the USA Patriot Act setting up as law the “know your customer” regulations. He predicts we’ll see more warrants issued by the secret FISA courts. “America is at war with a force that knows well how to exploit our laws for evil purposes.”

Non-Legislative Effects

Blanton spoke up on the impact of several non-legislative changes since 9/11. First, there’s Web censorship. There’s less information available now on the Web. The initial response, he says, was largely reactive; people didn't think before they pulled information from the Web. Second, Attorney General John Ashcroft has issued a memo reversing the increased discretion agencies had to release information under the Clinton Administration.

Third, according to Blanton, is President Bush’s executive order on the President’s Records Act, which Blanton describes as “dumb and illegal.” The National Security Archive is in court with others to prevent the National Archives from implementing it. And fourth, a memo from the White House chief of staff speaks of “sensitive but unclassified” information, a vague term that raises problems. After all, Blanton notes, a bureaucracy seeking cover can define anything embarrassing as sensitive. On the other hand, some basic scientific research cannot be classified, but could be helpful to terrorists. Blanton believes it is better for the scientific community to debate these problems than to have the White House issue edicts on “sensitive but unclassified” information.

These four things, Blanton says, point among other things to a battle in the intelligence community between Cold Warriors, who believe the government should decide who should get access to intelligence information, and the Web crawlers, who believe a wider dissemination of information will help fight terrorism by empowering people. Blanton notes that the license plate number on the car used by the alleged Washington-area snipers was released by an enterprising reporter; the release led to arrests. The old rules, Blanton says, don’t work today.

Intelligence Factors

Griffiths noted that many individuals are concerned about the sweeping powers of the intelligence apparatus to gather information about all of us. What about the possible use of that information? Strickland says that if you’re an agent of a foreign power, you should be very concerned. After all, the FISA standard isn’t whether something is a probable cause of crime, but whether someone is an agent of a foreign power. Under FISA, the standard for access to business records has been lowered to whether something has “relevance” to a national security investigation. A major change brought by the USA Patriot Act was to let law enforcement share information with intelligence.

Blanton brought up 9/11 intelligence failures. He said they should be very reassuring to civil libertarians – they’re a record of turf warfare and bureaucratic infighting. New legislation can rectify only so much of that. Legislators, he says, seldom go back to see if anything’s working. We need to oversee the overseeing.

Griffiths mentioned President Bush’s announcement about new surveillance initiatives on Iraqi-Americans. She remembered the progression of rights violations by Nazi Germany. Where will it end? Will I be under surveillance, she asked, if my child goes to school with an American citizen of Iraqi descent? Strickland pointed out these surveillances will be approved by the FISA court, as contrasted to authoritarian governments and dictatorships that don’t have such checks. However, the situation highlights a problem: Congress is continually questioning the intelligence community because it didn’t know about the 9/11 threat ahead of time. Others are critical of the intelligence community for performing the type of surveillance that can identify just such threats. Strickland asked if your neighbor attended a terrorist training camp, wouldn’t you like to know it?

Blanton countered that the real reason the Justice Department is fighting the release of information is because it has a mess to cover up. The core problem is that people who are truly dangerous are being missed because of bureaucratic rivalries. The CIA knew that two of the 9/11 hijackers were living in this country and that they met with terrorists overseas, but they did not alert other agencies to that fact.

Strickland agrees that the focus needs to be on whom we arrest for threats to national security. But we have problems in information management: you can’t exploit information if you can’t find it. Information sharing is a larger issue: “you don’t know what you don’t know.” We need real improvement there, he said.

Impact on Information Professionals

Griffiths brought up professional rights and concerns. She mentioned the case of the FBI demanding a library’s circulation records. The state laws protecting those records are overridden by federal law. Strickland noted that legally, the FBI and police need appropriate judicial orders – search warrants or subpoenas – to access this information. The best friend of any librarian, Strickland says, is his or her attorney. The new legislation in no way impedes your right to consult with your director and counsel. While cases of authorities demanding patron information from libraries aren’t frequent, librarians should plan for them. There’s a growing recognition, he says, that we need to manage and protect our electronic resources, not just ensure their privacy.

Blanton added that it is good to consider what would happen if the FBI came to your desk. Think out the various scenarios; be connected to your counsel before it happens. Librarians are the front line defense against thoughtless government intrusion. Strickland noted that just because a court order has been issued doesn’t mean the order is correct and shouldn’t be challenged. Moreover, agents at times can use intimidation, and the library director probably won’t be available when the agents visit. In sum, he says, if your staff isn’t educated and ready, you’re in trouble.

The floor was opened to a robust session of questions from the audience. By the end of the session, it appeared that many audience members were both better informed and more thoughtful about the issues raised by our government’s response to terrorism.

Editor’s Note: On the day following the session reported here, the U.S. Foreign Intelligence Surveillance Court of Review issued its interpretation of the USA Patriot Act. Elsewhere in this issue of the Bulletin of the American Society for Information Science and Technology, Lee Strickland offers his insight into the FISC opinion and updates his article from the December/January 2003 issue of the Bulletin: “Spying and Secret Courts in America:  New Rules and New Insights.”

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