the USA PATRIOT Act and CIPA
legally, ethically & practically
Jessamyn West
Rutland Free Library
www.librarian.net/nhla/index.html
06nov03
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CIPA & USAPA
These two pieces of legislation on the surface don't have a whole lot in common except...
- they attack civil liberties
- they annoy librarians
- they require an organized response, doing nothing is not an option
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USAPA: Context
USA PATRIOT Act - stands for
The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act
- passed nearly unanimously by the Senate 98-1, and 357–66 in the House
- end of October 2001. Remember where you were October 2001?
- one small part -- section 215 -- is about libraries
- is currently in full effect
- potential legal penalties for librarians
- potential conflicts with local and state policies
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CIPA: Context
CIPA stands for the Children's Internet Protection Act, a very small part of a larger appropriations bill which passed Congress December 2000.
- a three judge panel in PA ruled it unconstitutional in 2002
- in 2003 the US Supreme Court held that the law is constitutional, this decision came out during ALA in Toronto
- libraries have until July 2004 to be in full compliance with the law, they must show "certification of compliance" starting last week
- no penalties other than loss of E-rate or LSTA funds
- FCC is in charge of regulating CIPA. National Telecommunications and Information Administration [NTIA] did some analysis of current filters right after the appeal failed.
- "the federal government funds 1 to 2 percent of money in libraries" - Judith Krug
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USAPA: Legally
In short: Section 215 gives the government new powers to ask for and receive records in your library.
BUT,
the DOJ disagrees with organizations such
the ACLU &
ALA on the extent of the new laws and how invasive they are, or can be. Previously subpoenas for information came from a federal grand jury. Now they come from the [secret]
FISA court. FISA orders could only be used previously if the primary purpose of the order was to gather foreign intelligence information. USAPA changed the "primary purpose" criteria to one of "significant purpose." Potential uses include....
- request for records or patron information
- requests for hard drives & potential use of keytrapping or other surveillance software on public computers
- gag order regarding requests
- DOJ says it has never used the act in libraries in two years.
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CIPA: Legally
In short: if you get government money for net access, you must install filters on all computers
- CIPA applies when using E-rate discounts for ISP costs, LSTA funds for net access costs, or for buying net-ready PCs; doesn't apply to telecom. costs, voice or data lines. [see CIPA toolkit in links section for more]
- A library must have some type of filter or blocking technology on all of its computers with Internet access. The filters must protect against access to certain visual depictions...
["protect" is not prevent, "visual" is not text, "all" includes staff]
- Obscene [already illegal, rarely enforced]
- Child pornography [already illegal]
- Harmful to minors [note: only for minors]
- libraries that filter other content open themselves to potential legal challenges based on the blocking of constitutionally protected content
but remember: even without CIPA there is no constitutional protection for anyone to view obscene images or child pornography
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USAPA: Ethically
While librarians
may or may not be split as to how much of the USAPA is vital for National Security there are generally conficts with USAPA and patron privacy policies, and librarians' and library staff's rights.
- Most states implemented library patron privacy laws after the FBI Library Awareness Program
- Three states [AK, HI, VT] and 204 cities, towns and counties have passed resolutions against USAPA as well most state library associations.
- The gag order is directly in conflict with the First Amendment. There is "no prescribed sentence" for people who violate the gag order. [technically it's a contempt of court citation]
- Treats citizens and non-citizens diferently as far as what's required to justify an investigation.
- Patrons may ideologically fall on both sides of this issue.
- Governance of library will also affect how this issue is treated.
- There is a lot of room to move with regards to what can be done.
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CIPA: Ethically
The American Library Association was one of the organizations fighting to overturn this law, but it is now the law of the land, with most appeals exhausted. Official responses need to be tactical, not reactionary.
- Staff, board members and patrons all may have varying opinions on this law and may not even know the law exists.
- There is a not-at-all-fine line between sticking up for the right to read and free access for minors, and the conservatives' cry that librarians are all pornmongers and pedophiles.
- Money is real and needs to be dealt with accordingly.
- Overkill is easy and in fact encouraged by funding agencies.
- Less wiggle room in terms of responses, but fewer people know about CIPA compared with USAPA.
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USAPA & CIPA: Practical concerns
Core values of librarianship
- intellectual freedom
- fighting censorship
- open communication with patrons and staff
cardigans and free speech in general
Involve staff, the public, the media and the board in your work on these issues.
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USAPA: Practically speaking
Step one: talk about it
Legally, you can't do as much after an FBI visit as you can before....
Discuss options with board, publicize the USAPA and the library's reaction to it, to patrons, media and other staff. Remember your discussion options are limited once you've had a visit by officials [though the ACLU would sure like to talk to you....]
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USAPA: Practically speaking
Step two: facilities
- review the policy of record keeping to determine which, if any, records are necessary
- ditto for history/cache on computers
- determine how and when to alert patrons; consider library records, computer sign-up sheets, Internet access etc.
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USAPA: Practically speaking
Step three: staff and community involvement
- make sure all library staff from director to shelver understand appropriate responses to requests for information from police and FBI to media people
- make sure the library has written policies that back up the decisions your library has made
- connect with regional, state and national library and civil rights organizations for sample policies, legal implications and camraderie
- focus less on "us vs them" and more on "your library is protecting your privacy" messages
- remember it's an acronym, not patriotic, always spell it in all caps: USA PATRIOT Act
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CIPA: Practically speaking
First: Do We Need to Filter?
If you don't get e-rate or LSTA funds, you're set... for now. Watch your purchases and keep apprised of regulations and funding streams for Internet access.
If you're opposed to CIPA on ethical grounds, start looking for sources of funding to compensate for e-rate and LSTA funds.
Do a cost-benefit analysis of
all costs involved in CIPA compliance to see if complying will be worth the expense. Include in your analysis: filtering costs, maintenance and upgrade fees, hardware to run filters, staff training and administration time, additional technical staff, etc.
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CIPA: Practically speaking
Second: Educate yourself
- Know the decision: CIPA requires protection against visuals, all computers filtered, staff must unblock according to Kennedy's concurring opinion [or possibly face an "as applied" lawsuit]
- Know your filters: there is no such thing as a "CIPA compliant" filter as of this writing. Remember the language "the Internet filter must protect against visual depictions..." Most commercial filters filter much more than the minimum required by CIPA. [see the NTIA report in the links section]
- Know your library network: if some libraries in a regional system aren't compliant, others can still qualify for e-rate.
- See what other libraries are doing, read their policies and check their signage.
- Make sure you have policies outlining your Internet access policy and filtering policy, if you have one.
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CIPA: Practically speaking
Third: Educate the Community
Your patrons should know if their terminals are being filtered, and why. Adult patrons should know they have the right to unfiltered access.
Libraries without filters may still want to offer filtering as an option without restricting underage patrons to only filtered terminals.
It's not a one way street. Libraries may decide that filtering is not a viable or cost-effective solution and forego future federal funds, forever [or for a few fortnights]
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And Finally...
The choices are yours to a large degree. While certain degrees of compliance are required legally, other levels of patron interaction are up to you. Be proactive, be positive and above all be informed so you can be an advocate for your patrons and staff and the community at large.
[links]
Links & Sources
USAPA
CIPA
[credits]
Credits
"To those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists, for they erode our national unity and diminish our resolve."
-John Ashcroft
Jessamyn West is the new outreach librarian at
Rutland Free Library the editor of the weblog
librarian.net and the co-editor of
Revolting Librarians Redux. She has written extensively about the USA PATRIOT Act on her blog and for online and print sources. She is an ALA At Large Councilor and will be one of the supporters of a resolution to repeal the USA PATRIOT Act coming before ALA Council in January.
Her "
The FBI Has not Been Here" and "
Make Mine Unfiltered" signs have received the odd media mention here and there.
This presentation was created in HTML using CSS. There was no PowerPoint involved in this presentation except as a nagging bad example.