Electronic library information accessed by non-U.S. users overseas could be subject to federal surveillance if legislation currently before Congress is passed.
The proposed Senate and House bills would allow the government to access e-mails and other electronic information sent to non-U.S. citizens who are overseas or accessed by non-U.S. citizens who are using U.S. library resources overseas. For example, the government could observe a non-U.S. citizen using University resources abroad and collaborating online with University researchers back in the United States. The government would be privy to all of a subject's online communication, including domestic communication with U.S. citizens.
The House and Senate bills specify that these regulations apply to any communications service provider, and debate has emerged over whether libraries should be subject to these regulations.
Both Prudence Adler, associate executive director of the Association of Research Libraries, and Tara Olivero, assistant director for the American Library Association's Office of Government Relations, agreed that the legislation remains unclear as to whether a library qualifies as an "electronic communications service provider," which would be subject to surveillance. In the past, the Justice Department has stated that libraries can be considered providers.
"Many academic institutions have programs abroad," Adler said. "Accessing university resources remotely is what would be subject to surveillance."
The ARL and ALA oppose the inclusion of libraries as providers to protect the research rights of library patrons, Olivero said. The organizations have proposed adding a caveat to the bills that would explicitly state that the term "communications provider" does not include a library.
"In general, libraries have long-standing principles of protecting privacy," Olivero said. "It is important for intellectual freedom."
Justice Department Spokesperson Dean Boyd noted that there is concern among government officials about potential consequences of excluding libraries from the communications service provider regulations.He noted that a federal investigation showed that individuals using Internet accounts registered to Nawaf Al Hamzi and Khalid al-Mihdhar used public access computers at a New Jersey state college library in 2001 to buy airline tickets for flights on September 11. Al Hamzi and al-Mihdhar were hijackers aboard American Airlines Flight 77, which crashed into the Pentagon.
If Congress refuses to exclude libraries as electronic providers, ALA and ARL representative said they would prefer that judicial oversight be included in the bills.
"We believe there should be court oversight if there is surveillance in libraries," Adler said.
The difference in the bills lies in this point of court oversight. The House bill requires judicial review, whereas the Senate bill does not, according to Olivero.
"We like the House bill more than the Senate bill," Olivero said, explaining that the House bill offers patrons a buffer for increased privacy.
Boyd said this distinction would be made on a case-by-base basis.
The University is a member of both the ARA and the ALA, according to University Library spokesperson Charlotte Morford.
"We are confident that the library associations are asking the appropriate questions before this legislation is agreed upon," Morford said.
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