ABFFE Urges Supreme Court to Lift Gag in Connecticut Library Case

The American Booksellers Foundation for Free Expression (ABFFE) and other book industry organizations are urging the U.S. Supreme Court to lift a gag order preventing a Connecticut library from discussing the chilling effect of a National Security Letter (NSL), which seeks to compel the release of customer records. On Monday, October 3, ABFFE joined the American Library Association (ALA), the Freedom to Read Foundation, and the Association of American Publishers in filing an amicus brief in support of an emergency motion recently filed by the American Civil Liberties Union (ACLU) on behalf of the unnamed library that asks the court to lift the gag.

"Congress is only days away from final action on the reauthorization of the Patriot Act, including Section 505, which expanded the use of NSLs to obtain patron records from libraries," said ABFFE President Chris Finan. "It is absolutely imperative that the librarian in this case have the opportunity to speak about the threat that NSLs pose to reader privacy."

The Connecticut library case came to light in August when the ACLU challenged a NSL that had been issued to obtain the records of a patron's use of the Internet. ACLU asked the court to lift the gag order so that the librarian could participate in the debate over the reauthorization of the Patriot Act. The FBI can issue NSLs without court review to obtain the records of electronic communications service providers, including a list of websites visited by an Internet user using a computer terminal in a library, bookstore, or other business that offers Internet access to the public.

On September 9, a federal judge lifted the gag order, ruling that it violated the librarian's First Amendment right to participate in the current debate over the reauthorization of the USA Patriot Act and did not pose a danger of exposing the FBI's counter-terrorism investigation. However, the judge temporarily stayed her order, allowing the government to appeal to the Second Circuit Court of Appeals, which refused to lift the stay until it holds a hearing.

ACLU decided to appeal to the Supreme Court when it became clear that Congress might reauthorize the Patriot Act before the Appeals Court rules. Staff members for the House and Senate conferees are expected to meet the week of October 10, and the conference committee is expected to meet during the week of October 17 to reconcile the bills passed by the House and Senate extending the expiring sections of the Patriot Act, including Section 505.

In the brief, the amici state:

"The government has missed no opportunity to assure the public that Americans' intellectual freedom was in no danger. In 2003, the Attorney General assured the public that 'the Department of Justice has neither the staffing, the time, nor the inclination to monitor the reading habits of Americans.' He singled out for reassurance one of amici, promising, 'No offense to [ALA], but we just don't care....'

"It has now become apparent that one of amici's members has been singled out again: not for reassurance this time, but as a source for the government's investigation.... Other amici cannot be far behind. Amici therefore seek to ensure that this Court, as the district court did, consider [the Section's] broader implications for intellectual and academic freedom. Informed public discourse can occur only when there is an informed public. And as long as the only citizens who have firsthand experience receiving ... NSLs are barred from revealing that fact, we can never have the robust discussion that these issues require."

Moreover, the amici noted that the New York Times reported on September 21 that a website operated by the federal district court in Bridgeport, Connecticut, had inadvertently identified the NSL recipient as Library Connection, an association of 26 public and academic libraries based in Windsor, Connecticut, that share an automated library system. The amicus brief argues that the gag should be lifted since it appears that the recipient's identity has been revealed already.