Saturday, October 08, 2005


I've been following this disturbing case for 24 hours now. Kept researching because I was sure there must be something I was missing, so that when I put my thoughts to paper (electronic screen via keyboard, to be more precise) it would actually make sense. But it doesn't make sense. Unless you value control over free speech.

Here are the basics. The Patriot Act allows the FBI to demand library records of anyone subject to an FBI terrorism investigation. To do so, the FBI issues a letter called a "National Security Letter" (NSL). The ability of the FBI to do so, without receiving further permission from any court of law, is being contested in a separate court case.

A little known add-on regarding the NSL is a gag order placed on recipient of that letter. That's right. If the FBI issues one of these NSLs demanding the library records of someone, the library is not allowed to tell anyone. Can't even say that the library has received such a letter, or what it's about. Shhhh.

The gag provision means that those who have received a NSL cannot participate in the ongoing discussion about renewing the Patriot Act and this provision, in particular. They cannot contribute their experiences as to the chilling effect this has on library patrons. They cannot join in on this debate that so directly affects them. Shhhh.

The ACLU is challenging this little add-on for "John Doe", based on 1st Amendment free speech restraint. District Court Judge Janet Hall agreed with the ACLU, and barred enforcement of the gag. On appeal, the Second Circuit blocked this, to have time to review the constitutional issues involved. The ACLU appealed to SCOTUS. The ACLU doesn't appear to respect Shhhhs.

Justice Ginsberg declined to change the block (lift the stay, loosen the corset). She said that the case was on a expedited schedule, there were Constitutional issues involved (thank goodness Harriet Miers won't be addressing them--couldn't be expedited then, now could it). She also said that, since "John Doe" has been identified in the press already, the American Library Association could speak for him/it, lessening the gag effect.

According to the NYTimes (nonSelect pricey article, thank goodness), "John Doe" is The Library Connection, located in Windsor, Connecticut. The Library Connection website says that it "is a non-profit cooperative of 26 public and Library Connection academic libraries which share an automated library system and . . . other technological innovations."

Court papers give quotes which confirm the toll such a gag order can take on the individuals involved in merely the receipt of an NSL or being placed under a gag order. Listen to an executive of the Library Connection:

"Because of the gag, I have had to make excuses to my family and friends when I speak with my lawyers in connection with this case. My son knows that something is going on that involves his father and law enforcement (and) he is afraid that I may be arrested."

So, why the gag provision? To keep things secret, of course. But what is the point of enforcing or staying the gag provision when the cat's already out of the bag? The harm caused by the gag is to those who are stuck observing the provision, the very entities and people who most need to speak out. Doesn't Congress need to hear from those who have been harmed by provisions that have been called harmless?

Ashcroft called the notion that these provisions would be used against libraries "baseless hysteria". And, during a discussion of removing the sunset on some of these provisions (phase out after certain periods of time), Representative Sensenbrenner (R-WI) stated that sunset provisions were no longer necessary because there was "no actual record of abuse and vigorous oversight."

Hard to create a record of abuse if those abused or vigorously, um, oversought cannot attest to it without being arrested, now isnt it?

Until tomorrow,


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