Like the Little Engine that Could, for the past year, a group of four librarians have chugged on against the might of the FBI in a case against the Patriot Act. In spite of the best efforts of the Justice Department, the librarians have struck a blow for free speech and won.
Our tale begins on February 15, 2005, in a still-undisclosed small town library in Connecticut. Between 4:00 and 4:45pm on that day, a patron apparently accessed a computer and used it to announce some sort of terrorist threat. The FBI swung into gear, tracked the source of the threat to a particular computer, and sent a National Security Letter (NSL) to several librarians associated with Library Connection, Inc.—a service which supplies Internet access to 26 public libraries, including the one in question.
The NSL is a legal oddity of the Patriot Act, and it allows the FBI to make a unilateral demand which would usually require court oversight. In effect, an NSL requires the FBI to police itself, making it similar to asking the fox to watch a mirror. Although exact figures are impossible to come by, it is estimated that some 30,000 NSLs are now sent out each year. An NSL also comes with the added
bonus onus of never allowing the recipient to publicly discuss its contents, topic, or even existence. In other words, the recipient is supposed to get the NSL, comply with it, and pretend nothing ever happened.
In this case, what did happen was that one of the librarians, George Christian, brought the letter before the executive board of Library Connection. That board contacted the ACLU, and in August that organization filed a request to lift the gag order on the grounds that it prevented the librarians from exercising their First Amendment rights.
In September, a judge had ruled in favor of the librarians, but the FBI appealed, preventing the gag order from being lifted until a higher court could rule on the case.
For the next several months, the FBI continued the investigation of the case while the librarians refused to turn over any records. Christian pointed out that, had his organization been provided with a court order, it would have been "as cooperative as possible." Instead, due to the nature of the NSL, Library Connection felt compelled to test the Constitutionality of the request.
The legal process dragged on. In March, with the librarians still gagged and unable to testify before Congress, the federal government renewed the Patriot Act with minor revisions. In April, the government dropped its case against the gag order. By May, federal attorneys officially lifted the gag order, allowing the librarians to go public with details on the case. Now, the government has announced that it is closing the investigation altogether, saying that it had determined through other means that the case was meritless.
While it’s good to see a win for the First Amendment, it’s worth looking at the other side of the case as well: the US Attorney for Connecticut points out that the librarians, while winning in the end, hindered an investigation into what may have proven to be a real terrorist threat. That’s true, yet the issue the librarians had with the case was not with the investigation itself, but the fact that the law invoked is one that they felt was suspect due to its continuing and controversial potential for abuse. In that way, those four people risked prosecution while taking a stand for the continued freedom of all Americans.
Furthermore, in the renewed version of the Patriot Act passed this year, an NSL has an automatic gag order of only one year, although that can be extended on an annual basis in the case of ongoing investigations. That revision mitigates—although it does not remove—some of the First Amendment conflicts inherent in the original Patriot Act.