• About the Act
• What Is the Patriot Act
• Controversy About Parts of the Patriot Act
• How the Patriot Act May Affect You in the Library
• Internet and Email Privacy
• Library Records
• Patriot Act Resources

Though always a security concern, anonymous use of library computers came to the forefront after Sept. 11, 2001. The Sept. 11 terrorists used public Internet terminals (including those in libraries) to communicate with each other and plan the attacks. In response to security concerns regarding electronic communications, the Patriot Act codified standards on the monitoring of electronic traffic by law enforcement agencies.

Patriot Act Created Guidelines for Internet Tapping

New Mexico Man Arrested at College Library For Making Anti-Bush Statements On February 13, 2003, Andrew J. O'Connor was arrested at St. John's College library in Santa Fe, New Mexico, after Secret Service agents accused him of making threatening remarks about President Bush in an Internet chat room that evening. Admitting he talked politics in the library face-to-face with a woman who was wearing a "No war with Iraq" button, O'Connor recalled saying that Bush is "out of control," but added that "I'm allowed to say all that. There is this thing called freedom of speech." The arrest came about after campus security inappropriately monitored four Internet workstations set aside at the library for campus visitors. The campus security officer "found that the individual was making life threats against George Bush," which prompted the security officer to call the Secret Service. O'Connor was released about five hours after his arrest. American Libraries 34.4 (2003):23.

Section 216 of the Patriot Act expanded the use of trap and trace and pen-register devices from telephones to a variety of digital communications, including email, web surfing, and instant messaging. Previously, it was not clear from existing laws whether the rules that applied to telephone tapping also applied to the Internet.

Without the pen register statute, the government could conduct envelope surveillance without a court order. The government or anybody else could wiretap the Internet and collect any non-content information it wished without restriction. Applying the pen register laws to the Internet denied the government the power to conduct envelope surveillance without a court order, which limited government power and blocked private entities from conducting prospective envelope surveillance, thus protecting privacy. . .

In other words, the Patriot Act requires a court order, where before it may not have been necessary.

Kerr, Orin S., "Internet Surveillance Law After the USA Patriot Act: The Big Brother That Isn't." Northwestern University Law Review, Vol. 97, 2003 <http://ssrn.com/abstract=317501>

But the assurances that only "envelope information" is being captured does not persuade everyone. "'Unlike a phone call, you're suddenly revealing content,' said Fred Cate, an Indiana University professor specializing in privacy issues. 'It is impossible to obtain the address information without seeing the content of the data.'"² In the case of Google searches, the address information contains the search terms used. For example, <http://www.google.com/search?sourceid=navclient&ie=UTF-8&oe=UTF-8&q=uta+libraries>. This clearly reveals content, even though it is part of the envelope information.

Requests for Court Orders Cannot Be Refused

Section 216 of the Patriot Act says:

Upon an application made under section 3122(a)(1), the court shall enter an ex parte order authorizing the installation and use of a pen register or trap and trace device anywhere within the United States, if the court finds that the attorney for the Government has certified to the court that the information likely to be obtained by such installation and use is relevant to an ongoing criminal investigation.

The wording "Upon application. . .the court shall enter" has been interpreted to mean that the court cannot refuse the application. Furthermore, the government only has to "certify" that the information is "likely" to be relevant to an investigation.

Unlike other parts of the Patriot Act, section 216 is not up for review in 2005. Also, use of this section is not limited to terrorism investigations. The phrasing "criminal investigation" allows investigators to apply this section to a number of crimes like computer hacking and drug dealing.
More information

Roving Wiretaps and Library Computers

Section 206 of the Patriot Act allows a FISA (Foreign Intelligence Surveillance Act) court to grant a "roving" wiretap. This means that the wiretap is attached to a person, not a particular phone or computer. The government can follow all of a suspect's communications related to the conduct under investigation regardless of the suspect's location or device used.³

In this age of disposable cell phones and public Internet access, this can be a valuable tool for law enforcement. But the ACLU has stated that the amended law does not require that law enforcement agents first ascertain that the target is actually using the phone to be tapped. "It means, for example, that if a terrorist was using the Internet connection at a public library and law enforcement was using a FISA wiretap order to monitor his Internet communications, it might continue to monitor all Internet communications at that site after the terrorist left and was no longer using the computer." This could result in an invasion of privacy for people not related to an investigation.⁴

Nathan Henderson wrote in the Duke Law Journal, "While the Supreme Court has not decided whether roving wiretaps violate the Fourth Amendment, several lower courts have upheld their use. United States v. Hermanek, 289 F.3d 1076, 1087 (9th Cir. 2002); United States v. Gaytan, 74 F.3d 545, 553 (5th Cir. 1996); United States v. Bianco, 998 F.2d 1112, 1121 (2d Cir. 1993)."⁵

You can view the UTA Internet Privacy Policy at www.uta.edu/uta/wwwteam/privacy.html.