Two men in black appeared in the doorway of the Library Connection in Windsor, Connecticut as though they just stepped off the film set of the old 1960’s action series "The F.B.I." starring Efram Zimbalist Jr.
With a quick flash of their badges, the agents shuffled past the assistant and walked straight over to the man nearest the Xerox machine behind the counter. After a short introduction, the library’s director George Christian ushered the two agents into his office and closed the door. In a voice barely rising above the din of the copier outside the door, the lead agent explained to the director that the bureau was requesting "... any and all subscriber information, billing information, and access logs of any person of entity" that had used computers between 4pm and 4:45pm on February 15, 2005, in any of the 27 libraries whose computer systems were managed by the Library Connection, a nonprofit co-op of library databases.
The agent handed Christian a document known as a ‘national security letter’ (NSL) saying the information was being sought "... to protect against international terrorism."
Still somewhat confused about the whole thing, Christian stared at the men. His eyes followed the agent’s finger as it traced the document’s text down to one line in particular. Christian read the text silently. The recipient of the letter could not disclose to any person "... that the FBI has sought or obtained access to information or records." But that was only the beginning. It was a lifetime gag order. If he broke it, Christian could be looking at up to five years in jail.
The story appears in Mother Jones:
"I believe this is unconstitutional," said Christian politely. In response he got a threatening scowl, a business card, and instructions to have his lawyer call the FBI.
Christian did call his lawyer as soon as the agents were gone—and then he called Peter Chase, another library director and member of the Library Connection's executive committee.
"Where is the court order?" Chase asked.
"There is none," replied Christian. "They said they didn't need one."
Christian was being ordered to turn over records on library patrons simply because an FBI agent had told him to. He called a huddle with the rest of the Library Connection's executive committee, librarians Janet Nocek and Barbara Bailey. There, they passed around the NSL. Their attorney then announced that by virtue of having read the letter, everyone in the room was now bound by its provisions, and therefore gagged. It was as if they'd been exposed to radioactivity. That was the beginning of a yearlong battle pitting the four librarians, barred from speaking publicly and identified in the media only as "John Doe," against the anti-terrorism enforcers of the Bush administration.
There’s no doubt that so-called national security letters are insidious tools used controversially by the FBI nearly every day across America in pursuance of foreign intelligence surveillance in obtaining phone, financial and electronic records without court approval. Although in existence for decades, NSLs were rarely used before September 11, 2001, and have since been tweaked for even more power and secrecy. Their use exploded in number of times used after the Patriot Act
drastically unconstitutionally eased restrictions on their use. The Patriot Act allows FBI agents to serve NSLs on anyone whether or not they were the subject of a criminal investigation.
And, when I said their use exploded after 9-11 that was not hyperbole.
• in 2000, 8,500 NSLs were issued.
• between 2003 and 2005 the FBI issued more than 143,000 NSLs, only one of which led to a conviction in a terrorism case.
But it’s not just the frequency of their use that goes against the very core of our democracy; instances of abuse have risen right along with the outrageous numbers of their use. Just last year, an investigation revealed that even the soft regulations meant to govern the use of NSLs were flagrantly broken in more than 1,000 cases. Violations ranged from...
• failing to get proper authorization
• making improper requests under the law
• shoddy even negligent record-keeping to unauthorized collection of telephone and/or email records.
Such misuse has cast a long-lasting shadow over countless innocent Americans. Even when an investigation is closed, information gained through an NSL is kept indefinitely in the FBI files.
To protect their patrons, the four librarians engaged the national office of the American Civil Liberties Union (ACLU) in New York. They challenged the constitutionality of NSLs; they also wanted their gag order lifted so they could participate in the national debate over renewal of the Patriot Act.
"People say very confidential things to our reference librarians," explains Chase. "They have medical issues, personal matters. What people are borrowing at a public library is nobody's business."
A federal court in Bridgeport, Connecticut was the site of the first hearing in the Library Connection case back in August 2005. Since someone might guess the identities of the plaintiffs, government advocates argued that the mere presence of the four librarians posed a grave threat to national security. The judge concurred and ordered the librarians barred from attending the hearing. They were only allowed to view the proceedings on closed-circuit tv.
Similarly, when the "John Doe" librarians went to an appeals court hearing in Manhattan, their ACLU attorneys instructed the four not to enter the room together so that no one might guess who they were. John Doe New York—an Internet service provider whose case had been joined with the librarians' on appeal—was also in the room, but the librarians did not know who he was.
Not surprisingly, being the target of such a terrorism investigation became an overwhelmingly surreal experience. Chase recalled one day when his 21 year old son ran out the house to meet him, saying that the FBI was investigating their whole family. "Is that true?" he asked sheepishly. "Why haven’t you told us?"
Of course, Chase didn’t know how to respond. He didn’t want to lie to his son but he knew if he told his son the truth he would get caught up in the NSL mess. Inevitably, the frightened look on the young one’s face forced him to try. "I'm involved in a case," he said slowly and deliberately. "I can't talk about it. And it would be best if you didn't tell anybody about that phone call."
That incident happened back in November 2005.
The Patriot Act was reauthorized in March 2006. Six weeks later, the ACLU was informed by the Justice Department that they would no longer contest the Connecticut librarians’ demand to lift the gag order hanging over them. The case went all the way to the Supreme Court, who ordered the Justice Department to unseal the court documents in the case. What was revealed was bizarre.
The Justice Department was trying to keep secret:
• quotes from previous Supreme Court cases
• copies of New York Times articles
• the text of the Connecticut law that guarantees the confidentiality of library records
• sealed arguments made by the ACLU attorneys, including this passage: "Now that John Doe's identity has been widely disseminated, the government's sole basis for the gag has wholly evaporated."
A federal court finally ruled in the case of John Doe (New York) in September 2007. The court found that the entire national security letter provision of the Patriot Act was unconstitutional. U.S. District Judge Victor Marrero commented that secretive NSLs are "... the legislative equivalent of breaking and entering, with an ominous free pass to the hijacking of constitutional values."
Of course, the Bush administration has appealed the court’s decision. Consequently, John Doe (New York) is still gagged. However, another librarian in San Francisco managed to win in court against the use of the letters.
It’s unclear if that victory resulted in the FBI withdrawing a NSL to a digital library called the Internet Archive, but the bureau did so after a joint legal challenge brought by the ACLU and the Electronic Frontier Foundation (EFF)
"A miscarriage of justice was prevented here," EFF staff attorney Marcia Hofmann said at the time. "The big question is how many other improper NSLs have been issued by the FBI and never challenged?"
There’s no doubt that the FBI still uses NSLs in counterterrorism investigations. However, the absence of news on the matter is somewhat encouraging, and that absence could be due to the stubborn, patriotic stance taken by four librarians in Connecticut.
I salute you. Well done, citizens.