Act Could Up FBI Power

The Federal Bureau of Investigation (FBI) will still be able to access Harvard patron borrowing records­—a power Harvard officials argue may have a chilling effect on academic freedom—if Congress renews the Patriot Act now that lawmakers and the White House have reached a compromise on controversial aspects of the legislation.

Harvard’s long-standing concerns about the Patriot Act have not been adequately addressed by the three proposed changes to the revised Patriot Act legislation announced last week, according to Director of the Harvard University Library Sidney Verba ’53.

These compromises would specify that the FBI cannot demand internet records from libraries under normal circumstances and adjust the level of judicial review of these requests.

Even with these changes, the legislation still does not strike the proper balance between national security and civil liberties, Verba said in an interview with The Crimson yesterday.

Four Republican critics of the act and some influential Democratic senators announced Thursday that they had worked out three changes to the current legislation that they said satisfied their civil liberties concerns.

The FBI’s ability to demand a patron’s borrowing record was not changed by the compromises. But, under current law, libraries who receive this kind of request are prohibited from ever discussing it. The compromise would set a time limit on this controversial ban by specifying that libraries can challenge this “gag rule” in court after a year has passed, according to a statement released by the Republican senators who voted against long-term Patriot Act renewal in December.

The legislation still specifies that, in such a case, a high-ranking federal official’s testimony that the secrecy is crucial to national security must be accepted by the judge as conclusive.

This provision makes the right to challenge the gag order in court meaningless, national security policy counsel for the American Civil Liberties Union Timothy H. Edgar told The Crimson in December.

The compromises also specify that the FBI will no longer be able to use National Security Letters (NSLs) to request records of internet and e-mail usage from libraries “functioning in their traditional roles,” according to the statement.

But the FBI could still access the same records by sending an NSL to a library’s internet service provider, a Justice department official said, and libraries functioning as internet service providers would still be subject to NSLs.

As the third part of the compromise, a provision of the Patriot Act revision—which specifies that NSL recipients can consult with an attorney but must identify that attorney to the FBI—would be removed so that recipients have access to legal counsel without FBI notification.

Verba said that the details of the compromise are still unclear, and that a final evaluation of the legislation’s impact on Harvard will have to wait until Congress votes on the renewal sometime before March 10, when key sections of the Patriot Act are due to expire.

Congress has already temporarily extended the legislation twice in order to allow time for a bipartisan group of senators who have blocked the passage of the act to negotiate with the Bush administration about the library provisions and other measures that have sparked concern.

The FBI’s access to library patron borrowing records and internet usage and the perceived lack of sufficient judicial review over these powers have been central points of contention in the long debate over the Patriot Act renewal.

Verba, who is also the Pforzheimer University Professor of Government, said he thought the Patriot Act compromises seemed to be more an example of bipartisan political posturing than a substantive reworking of the issues at hand.

“You very often come to circumstances where both parties want to be able to look like they’re doing the right thing,” Verba said.

“It didn’t sound to me like they had solved the problems that we have been worried about,” he added.

—Staff writer Lois E. Beckett can be reached at lbeckett@fas.harvard.edu.