by George Christian
Six years ago, three of my board members and I had the relief of having a perpetual gag order lifted in Federal Court. Our organization, a consortium of 27 libraries, had been served with a National Security Letter seeking library records.
National Security Letters are subpoena-like instruments modified in 2001 by the USA PATRIOT Act to allow the FBI to issue them without judicial review (no need to establish probable cause). They are accompanied by perpetual gag orders that forbid recipients from acknowledging they were even visited by the FBI, let alone that they were asked for information or provided that information.
My board members and I sued the Attorney General to have our gag order lifted and the request for information without judicial review declared unconstitutional. Our legal struggle took ten long months, an effort we could only sustain because of free representation by the American Civil Liberties Union with support from the American Library Association.
While we were gagged, Congress renewed the Orwellian named PATRIOT Act without our being able to contest the Attorney General’s repeated reassurances that the law had not been and never would be used against libraries.
After a Federal Appellate Court found our gag order unconstitutional, the FBI dropped its request for our records. We believe they did so to avoid having the constitutionality of National Security Letters tested in court.
Although we proved our point, we hardly changed the government’s attitude. By the time we had won the freedom to speak about the government’s illegal attempt to obtain library records, more than 300,000 national security letters had been issued, each accompanied by a perpetual gag order. I am sure hundreds of thousands more have been issued in the past six years.
Since our encounter with the PATRIOT ACT, it has been twice renewed and strengthened. When Congress isn’t compliant enough in passing new legislation, the executive branch uses administrative procedures to advance its powers. Recently revised guidelines for the National Counterterrorism Center grant the director of National Intelligence the authority to profile and track American citizens for up to five years, whether or not they are suspected of any criminal activity.
If anyone can be profiled and tracked, privacy is lost, and conformity becomes valued over curiosity. How many people would be deterred from informing themselves about al-Qaida if they felt the government might be monitoring such inquiries? What about opposing military intervention in an Arab country? What about opposing the government’s erosion of privacy?
Libraries may turn out to be our society’s best bet in resisting government intrusions into privacy. American libraries have a proud heritage of promoting intellectual freedom by providing the broadest possible range of knowledge and ideas and opposing those who would limit what is available on library shelves.
Forty-eight of our states have laws protecting the confidentiality of patron information and library records and charging librarians with the responsibility of insuring this confidentiality is maintained. The other two states have State Library administrative regulations that amount to the same protection.
In recent years, an ever larger portion of the information to which libraries provide access has come in electronic formats, from data bases to electronic journals, downloadable e-books and audio books to digitized historical content. These trends will only continue, probably at an accelerating pace.
Which leads us to the delicious irony that libraries may be the only safe place the public has to access these types of information. Libraries may be the only place most people can get to where the monitoring of access to online information is guarded against.
All this is nicely reflected in the theme “Choose Privacy Week”. Privacy is a choice on both the individual and policy level. Librarians are mandated both by state law and professional ethics to protect patron privacy. Patrons need the shield of privacy to be able to use public libraries to explore personal and private issues or reading genres without fear of intrusion or censorship.
Patrons also need to know what the issues are. Choose Privacy Week is an excellent opportunity to help patrons explore these issues. My experience in being served a national security letter and its accompanying perpetual gag taught me that our liberties are guaranteed not by the Constitution, but by our willingness to insist that our Constitutional liberties be honored. An enlightened and informed public is our best hope. We all are fortunate that we have libraries and that our libraries have such a proud tradition of preserving intellectual liberties.
George Christian is the executive director of the Library Connection, Inc., a non-profit cooperative of 27 public and academic libraries that share an automated library system and other technology services. In 2005, he joined three other librarians in a lawsuit challenging portions of the USA Patriot Act after he received a National Security Letter seeking sensitive about a library patron.
(Cross-posted from privacyrevolution.org)