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The federal law, passed soon after Sept. 11, 2001, allows a special court to grant the FBI access to "any relevant tangible item" to a terrorist investigation, including books, papers, documents and library records. Earlier this month, an attempt to amend the act so it would not cover library use or book buying records failed in Congress.
Unlike a typical subpoena or search warrant request, entities served with a Foreign Surveillance Intelligence Act court order can't tell anyone but legal counsel they've recieved one.
The Minnesota Library Association criticizes the FISA court's secret nature and says the standards for seeking an order, which do not include probable cause, is lower than it would be in a criminal investigation, thereby threatening freedom of expression.
"There has got to be some way to come to the middle, with more oversight and less secrecy," said Marcia Wattson, chairwoman of MLA's intellectual freedom committee.
But Justice Department spokesman Mark Corallo said that the 11 district court judges who serve on the FISA court will fiercely protect liberty and only grant orders if the government makes a valid case.
He said the presidentially appointed and U.S. Senate confirmed adjudicators are well-trained and, by their very nature as judges, sensitive to civil liberty issues.
"If (critics) want to insult the judges, that is up to them," he said.
Corallo also said Congressional members will review classified information twice a year to learn how FISA orders are being applied.
In Sept. 2003, Attorney General John Ashcroft said no FISA orders had been granted for accessing library records. But because of the act's gag order, Corallo does not know if any occurred since then.
Local policies
Though Winona Public Library director James Stetina is aware of Patriot Act provisions, he said he has no strong feelings about the law.
"The access to records is really something we don't have here," he said. "It's really moot."
After patrons return books, Stetina said the transaction is erased. Internet users sign a paper sheet, which the library disposes daily, but patrons do not log on to computers, he said.
Kelly Krieg-Sigman, director of the La Crosse public library, said the library board hasn't taken a position on the act yet.
But it also doesn't bear much relevance to her library either.
"We already had some good processes in place before Sept. 11 (2001)," she said.
Once material is returned, the library only keeps a record for about three weeks, which allows time to discover if something is damaged, the director said.
Beyond that, Krieg-Sigman said the library has no reason to want the information, and saving it would only take up server space.
Unlike Winona, La Crosse users log on to computers with their library card number and pin number. Software kicks them off once they exceed their time limit. It also allows the library to withdraw computer usage from those who abuse the privilege, such as by not paying for pages they print or for accessing obscene material.
But someone must observe a person doing these activities and staff must view the library card in order to pull computer privileges, Krieg-Sigman said, because the computer keeps track of log-in numbers, not patron identification.
Somewhere in the mind of the server, Krieg-Sigman said, is an electronic record of the numbers. It is a rolling log and logins disappear after 60 days. Trying to get patron information off of it is nearly impossible.
"It would be incredibly time intensive for a programmer to go into these fields and attempt to decipher this information," she said. "I'm not even sure we have the expertise on staff on how to do it."
Unlike its larger counterparts, the Arcadia Public Library keeps patrons records for a few years, said librarian Marie Stolpa. She said library users often want to know if they've read a book previously before they check it out.
This is likely to change when Arcadia — a Winding Rivers Library System member- fully enters the WRLS Web network sometime next year. Then, users can check materials out from any network library with the same card, and Arcadia will have short-term record keeping similar to La Crosse, the network's main hub, said David Polodna, Winding Rivers director.
When this occurs, Stolpa expects Arcadia patrons will sign their initials next to due dates if they want to remember what they've read.
Polodna — who has worked in his capacity since 1989 — is not aware of any of Winding River's 34 libraries ever being served a subpoena or search warrant.
Across the state, Polodna only knew of an incident at Sun Prairie, Wisc., where an off-duty Madison police officer discovered computer printouts of child pornography in the men's lavatory. Law enforcement procurred a court order and confiscated 26 computers from the library.
Though the computers didn't identify users, the police were able to use a surveillance video to find the perpetrator, who was arrested and convicted.
Sun Prairie Public Library director Sharon Zindars said the Feb. 2002 incident didn't change their policies much, other than the installation of a system which can tell what computer a printout originates from.
Accessing records
The Patriot Act trumps state law in Wisconsin and Minnesota, Polodna and Wattson said, where library records are considered private and petitioners must show probable cause and get a court order to access them. In Wisconsin law, the only exception is for parents of adolescents.
"(Under the Patriot Act) they don't have to have too much of a reason to get the court document," Polodna said. "They don't have to prove some person is tied to a terroristic organization or being suspected of terrorist activity."
In Minnesota, while what a person borrows is private, Wattson said who holds library cards is considered public.
The Edina, Minn. librarian said she rarely hears — maybe about once a year— of a Minneosta library served with a subpoena or search warrant. However, she believes there is a number of law enforcement requests, but it is usually for material considered public.
Exactly how often requests are made is unknown, Wattson said, because there is no statewide clearinghouse for the information.
