A small library in Washington State faced down (for the moment) the FBI regarding circulation of a book.
At the center of the issue, a book titled “Bin Laden: The Man Who Declared War on America.”
The FBI confiscated the original book after a patron reported than some one hand wrote a bin Laden quote in the margin that read: “Let history be witness I am a criminal.”
The FBI demanded to know the names and addresses of everyone who ever checked out the book.
The library declined, the FBI got a grand jury subpoena, the library moved to quash the subpoena, and the FBI backed down … for the moment.
On the one hand, the library has a very good point:
“Libraries are a haven where people should be able to seek whatever information they want to pursue without any threat of government intervention,” said Director of Whatcom County Library System, Joan Airoldi.
Because of privacy policies, the library does not give out circulation records without a court order. When the FBI got a grand jury subpoena, the library filed a motion to quash it — citing the rights of all people who use the library. “Like the right to read and to read the material of one’s choice without fear that someone will come around with questions about why you chose that book,” said [library attorney] Garrett.
On the other hand, the FBI’s request was not an out-of-the-blue “Hey, let’s see who’s drawing moustaches on pictures of Dubya so we can ship them down to Gitmo.” One can imagine, for example, a Horrible Terrorist Act being traced back to an unconnected dot of an OBL follower who’d written the above quote in the above book and how the FBI failed to follow up (cue congresscritters pounding their shoes on the table).
Of course, there are any number of ways that quote could have gotten there (e.g., a patron just sitting in the library), and the quote itself isn’t necessarily indicative of a terrorist plot.
Which raises the issue of whether the library would have been more cooperative had someone scribbled, for example, “For the glory of Osama we will kill thousands next November!” in the margin. To what extent is this a matter of fundamental principle, and to what extent is it a matter of the library not agreeing that the information is worthwhile pursuing. If, for example, the FBI was aware of a terrorist cell in the area, would their trying to confirm that this book had been checked out by one of them be a worthy endeavor in the eyes of Airoldi and Garrett? If it’s an ongoing investigation, should they have to reveal that (hypothetically) classified (or perhaps even libelous, if it turns out to be false) info to the head of the local library?
I dunno.
(via J-Walk)
I guess it all depends on if you want to live in a free and open society or a police state…
I don’t think it’s that binary of an option, especially since perforce we live in a compromise along that axis (as with all other freedom-vs-security matters). The question becomes what the right balance is that can accomodate different needs. Should the FBI be able to willy-nilly request library records just on a whim? I don’t think so. Should they be completely unable to get any information that could either avert a terrorist attack or track down those responsible? I don’t think that’s reasonable, either. The question is where that balance lies. I don’t think library records must be sacrosanct, but I don’t think they should be accessible upon request, either.
So, all the FBI has to say is “we are tracking down information to avoid a terrorist attack” and they have carte blanch in regards to all information in the country.
Nope, no longer works.
No return to the days of Hoover, no matter how well intentioned. Especially since the book is on the shelves and anybody just walking by can pick it up and write things in it. The Justice Department has had a real poor record lately of respecting (or for that matter recognizing) the Constitution, so no more rights should be ceded to it until it proves it can be a responsible keeper of them.
Obviously the FBI just saying it cannot be taken as proof. You’re correct that they have a poor record showing they can be trusted with power and information without oversight.
There does need to be a mechanism, though, to allow with oversight reasonable requests for information where there is an actual need for it . In this case, the FBI convinced a grand jury to go along with a subpoena for the information, but the library still balked. At which point (for the moment), the FBI backed down (because the info was no longer needed? because it was a bogus request? because someone decided it was politically damaging? who knows?). The (ick) USA PATRIOT Act would allow, under a court order, the FBI to get the records as well (the controversial part there being that the library would have been gagged about revealing it had happened — heck, perhaps it has).
Is a court order or grand jury a reasonable oversight mechanism? If not, what is? If there is no oversight mechanism possible, what are the potential costs of blocking that information — not, perhaps, in this ostensibly silly example, but perhaps in the hypotheticals I brought up?
I don’t trust the FBI to behave well without someone watching it. It’s demonstrated, as an institution, that it won’t, and that’s the lesson of history as well. Assuming, though, that it provides a service that is of value, how to we balance that mistrust with a recognition of what needs doing in order to provide that service?
First things first: I think we ought to hang the guy for writing in a libarary book. With that out of the way, on to more important things.
I don’t want a police state, a state where thoughtcrime is considered a rational concept, or a state creeping toward either one of these. I think some heavy restrictions on what law enforecement can do are reasonable in order to achieve that goal. Consequently, I don’t think we should care whether or not the FBI needs the information from the library. Just as I think that no one should be legally obligated to testify against themselves, regardless of whether or not the FBI needs that testimony, I believe the FBI should not have the ability to subpoena library records (or bookstore records for that matter). Period.
Part of my interest in this is a professional one. As an academic who studies things that might be regarded as controversial, I don’t want information about my reading habits or those of my professional colleagues to be subject to law enforcement scrutiny of any kind. That would put a definite damper on research into those subjects, and consequently would be a limitation on free speech. Law enforcement access to library data or bookstore data is similar to the problem of academic freedom, and I think academic freedom and it’s larger sibling in the public domain are more important than the information law enforcement is likely to glean from access to library or bookstore data.
If you like, you can put this in terms of balancing the harms and the benefits of law enforcement access to library and bookstore data. I regard academic freedom and freedom of conscience as so important that they outweigh any possible benefits that can be obtained by giving them up. To give up those freedoms would be very nearly the same as putting oneself in a totalitarian regime.
If I was given a choice between allowing FBI access to library data and allowing 9-11 to happen, I would allow 9-11 to happen.
The case in question involves a one-time access to data on one book, and it’s not really a “fishing expedition” in the traditional sense since someone else has already reported that there is something suspicious about the book. However, I don’t want to allow the precedent to be set, and so I think the FBI just has to suck it up and get to work on finding the guy they want to question some other way.
Looking back on this, I can see that I may have used the slippery slope fallacy, the appeal to fear fallacy, and the straw man fallacy. I’ll have to think about this some more when I have more time, but I’ve got to go teach. I’ll go ahead and post it anyway, playing something of the devil’s advocate, but I reserve the right to reconsider some of these arguments.
Fair enough. I’m not sure I’d trade 3,000 lives in order to safeguard the perpectual sanctity of library records — but I’m not sure how man lives I would sacrifice for it, nor could I begin to calculate the cost of lives lost should that level of intellectual and academic freedom be somehow compromised.
What compromises to freedom are worth it to save lives? A phone tap? A search of an office or computer? Video surveillance of folks entering and leaving a given location? (Lord knows I don’t know what answer to give — I’m just not sure I trust that any of the answers I’ve heard thus far.
Part of what makes the problem hard is that there are competing values involved, and we don’t want to give any of them up. You suggest that saving lives is the most important value. My earlier post suggested that preserving freedom is the most important value. On reflection, I was probably too hasty to say that I would trade that for 9-11. The two values are probably not comparable. If asking how much freedom a life is worth is not something that can be answered in a rational way, then the two values are not comparable.
The potential consequences I worried about above could probably be minimized with careful implementation and monitoring. However, the risk to freedom of allowing law enforcement access to library records is great. Such public-policy balancing acts are always difficult and a quick emotional answer like the one I gave earlier is probably too greatly simplified (as illustrated by the potentially fallacious reasoning I used).
How we think of the problem is important. If we’re fighting to preserve our own freedom, then giving up freedom to preserve freedom makes no sense. If we’re giving up some freedoms in order to preserve others, that makes more sense, but it’s another case where the two items being balanced against each other are potentially not comparable.
The best solution would be to find some way to preserve both values. Ideally, the FBI could find and interrogate the author of the note without using the library records. Using the library records is the easiest way to try to track the person down, and the alternative is probably much more difficult. If we’re going to preserve both freedom and people’s lives, perhaps the cost we have to pay is that we have to work harder and pay a little higher cost.
If asking how much freedom a life is worth is not something that can be answered in a rational way, then the two values are not comparable.
Agreed. Though it seems to be a decision we are asked to make (or support) frequently. I don’t know whether folks who come up with the answers quickly and glibly have come to some sort of philosophical breakthrough, have done the thinking already and made up their mind what principles to places first, or are fooling themselves.
One of the difficulties in this case is that the link between something scrawled in a book and an actual threat from a library patron is tenuous. The words might be meaningless. They might have been written by anyone.
If we posit something less tenuous — someone discovers that a book in a closed collection has notes saying, “We will blow up a major building on November 1,” it makes it less easy to dismiss the situation — and less easy to simply dismiss the comparability of different values, since a decision must be made: should the FBI be given access to the list of people who had access to or checked out that book?
I still don’t know that I have an answer that satisfies me (let alone pleases me), but I know that, if a major building were blown up with loss of live on 11/1, and I’d stood on the principle of protecting intellectual and academic freedom, I’d feel even less confident in that decision.
I’m just going to step aside and pull out my big cheer fans for David Newman.
How we think of the problem is important. If we’re fighting to preserve our own freedom, then giving up freedom to preserve freedom makes no sense. If we’re giving up some freedoms in order to preserve others, that makes more sense, but it’s another case where the two items being balanced against each other are potentially not comparable.
The best solution would be to find some way to preserve both values. Ideally, the FBI could find and interrogate the author of the note without using the library records. Using the library records is the easiest way to try to track the person down, and the alternative is probably much more difficult. If we’re going to preserve both freedom and people’s lives, perhaps the cost we have to pay is that we have to work harder and pay a little higher cost.
I have Cronkite’s voice in my head reading those two wonderful paragraphs.
I’ll be sure and let the surviving families know that the FBI should have just “worked harder.” “Sure, it turns out the suicide bomber did in fact check out that book, and when we went to his house we found all sorts of bombing supplies — but if the FBI had just worked harder, well, I’m sure they would have discovered the plot some other way. And even if they didn’t, at least you still have your academic freedom, even if you don’t have your mother/wife any more.”
That’s probably unfair (at the very least it’s a worst case scenario), but the “work harder” defense seems an ultimately untenable position if taken as an absolute.
The right of academic and intellectual freedom is, for example, no more or less valuable than the right to privacy. Certainly lives could be saved if the police could wander into any house at any time and look for contraband or proof of some conspiracy. Lives could be saved if we put wiretaps on all phones and bugs in all rooms. Winston Smith’s Airstrip One was probably a lot safe from common crime and terrorism than we are today.
Of course, that intrusion on personal privacy would be intolerable, and exact a horrible cost, and violate very personal and important rights.
On the other hand, we have decided that there are cases where personal privacy can be violated. Wiretaps and bugs and searches are allowed, under controlled and justified and reviewed circumstances. Yes, there are abuses and loopholes (in both directions), but, as a whole, we’ve decided that allowing someone absolute privacy in their person and property to be as intolerable and dangerous to society as an absolute lack thereof would be.
It seems to me this is a similar case. There are times, yes, when the FBI needs to work harder — e.g., determine a justification for information and convince some sort of oversight authority, such as a court. But to say that the books in my house, or downloaded to my computer, or that I’ve visited a particular bookstore and paid with my credit card, can sometimes be determined legally by law enforcement (with justification and a court order), but that the books I’ve checked out of the library should never be examined, seems inconsistent both with current law and with the balance we are already making between privacy and security.
I don’t mean to minimize the losses of 9-11 or to say that they are acceptable. I do mean to say that if we want to uphold the values of life and liberty which are part of our national ideals, then we can’t give up one in favor of the other. If offered a choice between life and liberty, I reject the choice. I want to think outside the box and find a solution that recognizes and protects both values. One might suggest that the choice between life and liberty is a forced choice and that there isn’t another option, but that claim is equivalent to the claim that there is no way to protect both values at once. Since that’s a negative existential claim, it will be very difficult to prove, and I think it’s likely to be false.
The fact that we have in the past emphasized one of these two values in favor of the other doesn’t show that we should take that approach. The fact that people have died because we didn’t work hard enough to protect them doesn’t meant that we don’t value their lives. Our disagreement is not about whether or not life is valuable, it is about how to protect life, and whether or not it can be done without forgoing liberty. It may be easier or cheaper to trade liberty for life, and it may be more costly to avoid such tradeoffs, but if we value both life and liberty, then I think it’s worth the effort to try to protect them both.
P.S. The more I think about it, the more I want to say that my first response was too one-sided. In particular, I no longer want to say that I would allow 9-11 to happen in order to preserve freedom. What I now would say is: there has GOT to be a way to prevent 9-11 AND preserve freedom.
P.P.S. Did you know that if one clicks “Post” before filling in the name and email address, one loses the text of one’s post? (I’m using IE on a public Windows machine today rather than my personal laptop.)