Posted: 2/8/2006 1:24:00 AM
Author: Richard L. Cravatts
NEWTON, which this year was named as the country's safest town, can now add a second designation to its Chamber of Commerce brochures: It can boast of being a town that is not only safe for its residents but which also protects the privacy rights of would-be terrorists who wish to use its library. After a credible terror threat to Brandeis University was traced to a public computer at the Newton Free Library on Jan. 18, the FBI and local police rushed to secure the computer, with the possibility of identifying the nature of the threat and the person behind it.
What law enforcement had not anticipated, however, was that their pressing search would be abruptly sidetracked when Kathy Glick-Weil, the library's director, informed them that no one was searching anything without a warrant.
Glick-Weil, like many of her counterparts who are members of the American Library Association (ALA), was well-prepared to stymie the investigative efforts of government officials. In fact, since the passing of the Patriot Act and its Section 215, which governs searching in libraries and bookstores, librarians have been apoplectic at the notion that government officials, in their view, now have authority to kick through library doors and randomly monitor the reading and Internet surfing habits of their patrons.
The ALA's sentiments, and Glick-Weil's decision to become a ''human shield" for 10 precious hours while the FBI waited to secure a warrant and seize the computer, would be very noble -- save for one important point: They are based on a misunderstanding of both Section 215 of the Patriot Act as well as the protections provided in the Constitution's Fourth Amendment.
The would-be terrorist who threatened Brandeis University, far from relying on an expectation of privacy and the ''right to be left alone," in fact loses those protections once he conducts his transactions in the public marketplace. As Heather Mac Donald, a senior fellow at the Manhattan Institute for Policy Research, recently observed, ''Like it or not, once you've disclosed information to someone else, the Constitution no longer protects it. This diffuse-it-and-lose-it rule applies to library borrowing and Web surfing as well, however much librarians may claim otherwise."
That librarians minimize the necessity for more vigilant security measures in the post 9/11 era overlooks the fact that unlawful use of public libraries by terror suspects is well documented. Reports were received directly after Sept. 11 from the Delray Beach, Fla., Public Library where a hijacking suspect had used the library's computers. Similarly, library patrons around Hollywood, Fla., where five of the suspects had stayed prior to the attacks, identified hijacker-to-be Mohammed Atta as having used two of the area's libraries.
Moreover, the Brandeis bomb threat was very different than an instance in which a crime has already occurred. There is a substantial difference between searching for evidence before or during the commission of a crime, when the intention is to prevent its occurrence, and the more typical search for evidence after a criminal act has been committed, when rapid response is not necessary. That distinction clearly did not resonate with Newton officials. Nor, apparently, did the fact that the Supreme Court has repeatedly found that if exceptions are ''jealously and carefully drawn" and ''the exigencies of the situation made that course imperative," searches during the commission of a crime do not violate constitutional protections.
The more thorny and pressing question is why a library director could even exercise the authority to block access to vital evidence requested by the police and FBI, stalling an investigation during an ongoing crime where stakes are high. More to the point, why are librarians, whose professional training concentrates on mastering the use of the Dewey Decimal System, making any decisions that affect law enforcement? By whose authority and with what knowledge are they defining and granting constitutional rights to their patrons? Where have they received training in emergency response, domestic security, and thwarting terrorist threats?
The debate over the Patriot Act, and legislation that came as a result of attacks on America, have focused on the potential for infringement of personal rights, says the Heritage Foundation's Paul Rosenzweig. ''But Americans should keep in mind," he says, ''that the Constitution weighs heavily on both sides of the debate over national security and civil liberties." That means that even if library directors have taken what they perceive as a ''sacred vow" to keep the government from knowing who has checked out what books, rights to privacy -- even if they were applicable in the library's public space -- have to be balanced with the reality that the protections we enjoy as law-abiding citizens under the Constitution can be snuffed out by those who exploit these freedoms for their own murderous intent.