photo: Chris Hildreth

n October of 2001, Ann Miller, public documents librarian in Duke's Perkins Library, received a document that she hadn't exactly anticipated for her collection. It was a memo to depository librarians from the U.S. superintendent of documents. The memo referred to a CD-ROM that had been singled out by the U.S. Geological Survey's associate director for water; the CD-ROM carried the dry title "Source-Area Characteristics of Large Public Surface-Water Supplies in the Conterminous United States: An Information Resource for Source-Water Assessment." From there, the language was succinct: "Please withdraw this material immediately and destroy it by any means to prevent disclosure of its contents."

The directive apparently grew from a concern that terrorists might tap into the water system. Duke is an official government depository site; its holdings of official documents essentially belong to the government. So this was a recall notice that had to be honored.

" The CD-ROM had been in the collection for several years," says Miller. "It concerned national water supplies, but we weren't asked to withdraw the CD-ROM on state water supplies, which we also have. And this notice only applied to depository libraries. What if one of our geologists or geographers had purchased a copy? They didn't have to return it. So it was a little odd."

Perhaps it seemed a little odd, but this seek-and-destroy mission points to a new stress on security that may be intruding on the free flow of information. Miller's memo file includes a message to executive departments and agencies from Andrew Card, President Bush's chief of staff. Last spring, Card asked Justice Department officials to safeguard "government information in your department or agency regarding weapons of mass destruction, as well as other information that could be misused to harm the security of our nation and the safety of our people."

The Bassett Affair

Those are awfully broad guidelines, Miller observes. And they're being applied across the range of information media--potentially by low-level bureaucrats. Federal Computer Week, a government watchdog group, reported this fall that "tens of thousands of documents" have vanished from government websites. One month after last year's terrorist attacks, the Federal Energy Regulatory Commission blocked access to website information on hydropower plants, gas pipelines, electricity transmission lines, and other components of the energy infrastructure. "I'm worried that we won't be able to look back on this time period and get any sense of our history, of who we were and where we've been and how we got to where we are now," Miller says. "That's what government publications do."

One thing government did, right around the time that Miller found herself hunting down the offending CD-ROM, was to pass the USA Patriot Act. (Its formal and imaginatively cumbersome title is the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001.) In amending more than fifteen federal statutes, the Patriot Act expanded the authority of law enforcement.

The American Library Association points out that under the act, the FBI can acquire library circulation records, which are now treated as business records. While University Librarian David Ferriero says he finds that provision disturbing, the practical effect is hard to gauge. "In our online system, we don't keep histories. When a transaction is completed, when you return your book, that link is broken and there's no trail. So no one could go into our system under your name and pull up everything that you've ever borrowed. The only thing they could determine is what you currently have out."

Of course, he adds, "A faculty member here at Duke has year-long borrowing privileges, which are renewable, so they could have quite a collection of material out. In fact, until we have more space, I encourage the faculty not to return their books."

What the Patriot Act encourages is new cooperation by libraries. With a court order, libraries now have to help monitor a user's electronic communications sent through the library's computers. In seeking records, agents are not required to demonstrate "probable cause" of a crime; they need only claim that those records are linked to a terrorism investigation. Unless agents were physically monitoring a public-access computer, Ferriero says, it's hard to see how they could peg an individual user to a particular website. Still, he says, "since so much of what we're doing involves Internet access, and since we have so many opportunities within the physical space for people to do that, librarians have a genuine concern" about that aspect of the Patriot Act.

The Patriot Act is also bringing a new meaning to library silence. Librarians served with a search warrant issued under the new rules may not disclose the existence of the warrant. They can't discuss the fact that records were produced as a result of the warrant. And they have to resist telling a library patron that his records were given to the FBI or that she is the subject of an FBI investigation.

Access to information is now an issue that transcends libraries. A National Academy of Sciences report on science, technology, and terrorism points out that debates on the free exchange of ideas always arise during wartime. Duke doesn't allow classified research on campus. Judith Dillon, director of the Office of Research Support, says classified research "is contrary to our mission. The mission of a university is to disseminate information, not keep it secret."

More than philosophical stances come into play. A university's status in the eyes of the IRS hinges on that traditional mission, she says, and a shift in policy (even, ironically, in service of government imperatives) could endanger its tax-exempt status. For graduate students, involvement with classified research could be career-deadening. As she puts it, "What do you do with a dissertation that's based on classified research? You can't defend it. You can't put it in the library. In essence, you don't have a dissertation."

Dillon says the university will permit prior review of publications--which is different from the right to refuse publishing research findings. "The issue of whether we will accept a restriction on publication is one that comes up frequently. We always fight it." Prior review focuses narrowly on two areas. "First, they can ask to see if you've revealed their confidential information--that is, information that you may have been given. In that case, you'll be asked to remove it or to disguise it. Second, they can ask you to delay publication so that patent applications can be made. That's it. In either case, they can't stop publication. They can only ask you to make some changes."

In the last year, Duke turned down a Department of Defense grant that involved an engineering faculty member. Duke would have been a subcontractor with a principal investigator at Mississippi State University. DOD wouldn't agree to unfettered publication. "We could not get around the restrictions on publication," says Dillon. "It was absolutely impossible. We tried all kinds of different wording of the publication clause, and they would not change it." She learned that at one point "everything in the lab where the project was going on was boxed up and carted off--dissertations, everything," she says. "Now it's all back out of the boxes. But this does happen. It is a real consequence and it is a real fear with classified research."

Increasingly, government contracts are carrying clauses that would require the university to obtain an export license before technical data reach another country. That might cover giving a presentation in a foreign country, or involving a foreign student or visiting professor in the research team in this country. So the Department of State or the Department of Commerce would have the right to approve or disapprove the "export." But Dillon sees this as an example of bureaucratic inconsistency: If in fact they're doing fundamental research, research institutions by law are not subject to export regulations.

Some clauses are overtly targeting foreign nationals, with language specifying that all foreign nationals working on a project must have the approval of the contracting officer. "We fight very hard to remove those clauses. It isn't up to them to say who and who may not be the people we designate to have on a project," Dillon says.

Dillon worries about a newly emerging middle ground between fundamental research and classified work, one that takes the form of "sensitive information." "How do you define sensitive information?" she wonders. "These clauses have absolutely no criteria in them whatsoever. But they allow a contracting officer to sort of sit there and look at a publication and say, well, this might be sensitive--no explanation necessary."