Federal Prosecutors Lift Patriot Act Gag Order on Library

On April 12, the Department of Justice (DOJ) lifted a gag order that had prevented the Library Connection of Windsor, Connecticut, from discussing its receipt of a National Security Letter (NSL) demanding patron records as part of a counter-terrorism investigation.

"It's important that the Connecticut librarian will finally be able to speak about the chilling effect of government gag orders," said Chris Finan, president of the American Booksellers Foundation for Free Expression, one of a number of organizations that filed an amicus brief in support of the American Civil Liberties Union (ACLU) challenge of the gag order on behalf of the library. "Hopefully, his testimony will help us continue to build support for further modifications of the Patriot Act."

Under Section 505 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 a patron using a computer terminal in a library, bookstore, or other business that offers Internet access to the public.

Last September, 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 held a hearing.

With the gag order lifted, the Library Connection -- an association of 26 public and academic libraries based in Connecticut, that share an automated library system -- are allowed to speak publicly about the FBI's demands for patrons' library and e-mail records.

Though pleased with the government's decision to drop its appeal, Michael Gorman, the president of the American Library Association (ALA) noted that the timing of the decision was "suspicious" since it came over a month after the Patriot Act reauthorization. "The American public should be outraged that the one person in the U.S. who could have spoken from real experience with an [NSL], and who was seeking to join the national debate, was forbidden from doing so until after that debate was complete," he said in a statement. "This appears to be secrecy for the sake of control of the public debate, rather than a true concern for national security."

However, according to a New York Times report, Kevin J. O'Connor, the U.S. attorney in Connecticut, explained that the government decided to drop the appeal and lift the gag order due to amendments in the USA Patriot Act reauthorization bill giving the "FBI discretion in allowing recipients to identify themselves."

In addition, the article noted, "the government was also under pressure to drop its fight after mistakenly disclosing in court records the very information it was fighting to keep secret." A website operated by the federal district court in Bridgeport, Connecticut, had inadvertently identified the Library Connection as the NSL recipient.

The Connecticut case was one of two challenges brought by the ACLU in regards to the issuance of NSLs. The other case involves a New York Internet Service Provider that was also asked to turn over customer records in regards to a terrorist investigation. Similar to the Connecticut case, a lower court ruled that the NSL provision violated Americans' constitutional rights and the government appealed. However, the government is still pursuing its appeal in the New York decision, contending that the recent changes made by the reauthorization of the Patriot Act cured any constitutional defects in the law, the ACLU noted in a press statement. --David Grogan