FISA and Libraries

Today's Washington Post raises more serious concerns with the FISA reform legislation that now sits before the Senate Judiciary Committee. Specifically, the Post conveys the concerns expressed by library and university organizations about an expansion of the conditions with which the government would be allowed to monitor activity in libraries and library databases without warrant:

Draft House and Senate bills would allow the government to compel any "communications service provider" to provide access to e-mails and other electronic information within the United States as part of federal surveillance of non-U.S. citizens outside the country.

The Justice Department has previously said that "providers" may include libraries, causing three major university and library groups to worry that the government's ability to monitor people targeted for surveillance without a warrant would chill students' and faculty members' online research activities.

"It is fundamental that when a user enters the library, physically or electronically," said Jim Neal, the head librarian at Columbia University, "their use of the collections, print or electronic, their communications on library servers and computers, is not going to be subjected to surveillance unless the courts have authorized it."

Under the legislation, the government could monitor a non-U.S. citizen overseas participating in an online research project through a U.S. university library, and gain access to the communications of all the project participants with that surveillance target, said Al Gidari, a lawyer with the Perkins Coie firm who represents the Association of Research Libraries and the American Library Association.

The bills, which would replace a temporary law amending the Foreign Intelligence Surveillance Act, would not require the government to demonstrate "probable cause" that the foreign person targeted is a terrorist or a spy or to let the FISA court, which grants surveillance warrants, know that the tap will be on a library.

This is yet another instance where the current FISA reform legislation casts too-wide a net. Guilt by association as it exists here, where foreigners suspected of terrorist activities access information on a library's overseas network, could place electronic communications and research down by Americans in America into the eye of government surveillance without demonstration of probable cause. There would not be adequate oversight of the surveillance -- and asking this administration or any other to minimize unnecessary, unwarranted surveillance is no stand-in for adequate oversight.

While you're calling members of the Senate Judiciary Committee today, don't forget that there are other issues with the legislation and what is needed from them is a commitment to oversight and standing up for the rule of law and Americans' civil liberties.

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