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In the weeks after the Sept. 11, 2001, attacks, FBI agents armed with warrants made visits to the Paterson, N.J., Public Library and took away two computers provided for the public. They apparently hoped to scan the hard drives for clues to the activities of three hijackers with ties to the city. The incident made few headlines, but it turned out to be the tip of a domestic surveillance iceberg. Last June, a University of Illinois survey said local or federal authorities had asked 85 libraries across the country for information about patrons. That the survey found so many is a surprise: The USA Patriot Act, passed in October 2001, made it illegal for librarians to tell anyone about FBI library raids. “The librarians ask, ‘Can we tell our lawyers? Can we tell our boards?’” says Princeton, N.J., solo Grayson Barber, a privacy-law authority who has been advising the New Jersey Library Association (NJLA). To that end, the library association and its national counterpart, the American Library Association in Chicago, have embarked on a “Lawyers for Libraries” program. The aim is to educate attorneys on the new legal challenges faced by local institutes and to build lists of attorneys with expertise in privacy, First Amendment and harmful-to-minors law. Law enforcement scrutiny of library records has always raised concerns, as the First Amendment has generally guaranteed readers confidentiality and anonymity when they borrow books from public collections. The New Jersey Confidentiality Statute, N.J.S.A. 18A:73-43.1 et seq., keeps library users’ information a secret unless a subpoena or court order is produced. The privacy stricture is meant to prevent the apocryphal scenario of husbands or wives checking on spouses’ reading lists and finding they have borrowed books on divorce. Since passage of the Patriot Act, Barber says, librarians have become concerned that their municipal attorneys may be ill-equipped to deal with new types of government intervention and the litigation it is likely to create. For instance, Barber says, � 215′s search-and-gag provision “is almost certainly unconstitutional.” LIBRARY ‘SELF-CENSORSHIP’ The Patriot Act is already having a chilling effect, even in areas where it does not apply. Three sources, one a lawyer and two librarians, recall a recent incident in which a man used his local library to read some foreign Web pages. He interrupted his studies to make a cell phone call on the sidewalk outside the building. Before his conversation was over, a squad of police officers — apparently alerted by another library user — descended on him, demanding to know who he was and what he was doing. The man was doing nothing wrong, it turned out. But Pat Tumulty, executive director of the NJLA, says the library in question would not talk about the incident because of the new legal climate and because officials were hoping to persuade local police to adopt a more cooperative attitude toward legal library behavior. “It’s a very sensitive issue,” Tumulty says of the library’s self-censorship. What most lawyers and members of the public may not realize — but what librarians have to live with every day — is that � 215 of the Patriot Act actually incorporates and extends the Foreign Intelligence Surveillance Act of 1978. The act now allows the FBI to make searches of libraries for readers’ records. It further states, “No person shall disclose to any other person … that the Federal Bureau of Investigation has sought or obtained tangible things under this section.” While FISA, with its secret intelligence courts, previously gave the FBI the power to execute search-and-gag orders, it was always within the context of foreign counterintelligence, and thus rarely used. “The gag provision was understandable and manageable because it was fairly narrowly applied,” Barber says. The Patriot Act extends FISA’s powers to any criminal activity, and has made New Jersey librarians some of the most cautious people in the country. Hence, when Mick Cuthbertson, chief of administrative services for the Camden County library system, was asked whether any of his institutions had been the subject of law enforcement attention, he replied, “No. And we’re not allowed to tell you even if we were.” “When libraries are faced with that, they need their attorneys to be very well versed in the documents and warrants,” Tumulty says. “Many times the attorneys working with city and municipal libraries do not have a specialization in First Amendment law.” Tumulty and the ALA are hoping to put together a list of attorneys who may want to solicit business from libraries, especially if they have previous library “war” experience. Until the Patriot Act, that experience often included defense against books-off-shelves incidents, such as occurred with “Heather Has Two Mommies,” a children’s book about a girl with gay parents. “Intellectual freedom is a constant legal challenge” for libraries, says Tumulty. “Ever since the first library purchased a book, there have been questions of who likes the book and who doesn’t.” As part of the Lawyers for Librarians program, Barber addressed 50 librarians on Jan. 16 in Old Bridge, N.J., on privacy and the Patriot Act. On Jan. 7, she held a seminar at the Law Center in New Brunswick, N.J., for about 30 municipal officials and library attorneys seeking information on the subject. Frank Corrado of Rossi, Barry, Corrado & Grassi in Wildwood, N.J., who teaches First Amendment law, and Kristina Hadinger, a partner at Mason, Griffin & Pierson in Princeton, N.J., who is president of the Institute for Municipal Attorneys, also spoke. And on Feb. 27 and 28, there will be a larger conference for lawyers and librarians hosted by the ALA in Washington, D.C., with a similar aim.

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