Last week, the fight to restore safeguards for reader privacy eliminated by the USA Patriot Act returned to court when a federal judge was asked to again strike down a section of the law that authorizes the FBI to issue National Security Letters (NSLs) to bookstores, libraries, and Internet service providers (ISPs). On Friday, September 29, the American Booksellers Foundation for Free Expression (ABFFE) joined the American Library Association and others in filing an amicus brief in federal district court in New York to support the fight being waged by an unnamed ISP and the American Civil Liberties Union.
"The reauthorization of the Patriot Act in March did not end the fight for reader privacy," said ABFFE President Chris Finan. "We are continuing to urge Congress and the courts to fully restore the privacy of bookstore and library records."
In September 2004, U.S. District Court Judge Victor Marrero struck down the NSL provision of the Patriot Act that authorizes the government to issue NSLs for "transactional records" to ISPs and other electronic communication providers, including libraries and bookstores that offer the public access to the Internet. Similar to orders issued under the so-called "library" provision of the Patriot Act (Section 215), the FBI can seek the records of anyone who it believes is relevant to a terrorism investigation and the recipient of the order is forbidden to reveal its existence to anyone except legal counsel and the persons needed to help comply with the request. Unlike Section 215, however, the government does not need a judge's approval to issue an NSL.
In his 2004 decision, Marrero said that the provision authorized the government "to compile elaborate dossiers on Internet users," including "a log of e-mail addresses with whom a subscriber has corresponded ... the anonymous message boards to which a person logs on or posts, the electronic newsletters to which he subscribes and the advocacy websites he visits." He ruled that it was unconstitutional to give the FBI so much authority without judicial oversight. Marrero also declared that the permanent gag order issued automatically in connection with NSLs violated the First Amendment.
After the Patriot Act reauthorization bill was signed into law in March, the U.S. Court of Appeals for the Second Circuit remanded the case back to Marrero for further consideration. The new legislation contained a number of changes, including the right to challenge NSLs and Section 215 orders in court and a procedure by which a recipient can request that a gag order be lifted.
The unnamed ISP and the ACLU have filed an amended complaint challenging both the provisions of the amended statute and the specific demand for information sent to the recipient.
The amicus brief filed by ABFFE and ALA supports the plaintiffs' contention that Constitutional problems remain because the procedure to lift the gag and the government's ability pursuant to the amended statute to demand secret ex parte proceedings in any challenge by a recipient of an NSL do not provide meaningful judicial review and chill speech: A lawyer for a bookstore or library would not be permitted to appear before the judge in an ex parte proceeding, and, while the recipient may now request the lifting of the gag, the government can reject the request if it believes that national security requires it. The court is required to accept the government's claim that continued secrecy is necessary.
ABFFE and ALA also support the plaintiffs' request to set aside the demand for information in this particular case. The revised NSL statute permits a recipient to challenge an NSL on the ground that compliance would be "unreasonable, oppressive or otherwise unlawful." ABFFE and ALA believe that the NSL in this case is unlawful because the government has not met the legal test for demanding information protected by the First Amendment -- that it has a compelling need for the information, that it has tailored its request to meet that compelling need, and that it has no alternative means to secure the information without burdening First Amendment speech.
The Freedom to Read Foundation, the Association of American Publishers and PEN American Center also joined the amicus brief, written by Theresa Chmara of Jenner & Block, Washington, D.C. and available in PDF format on the ABFFE website, www.abffe.com.