ACLU Seeks Emergency Court Order to Lift Gag As Congress Prepares to Make Patriot Act Permanent
NEW YORK - The American Civil Liberties Union today disclosed that the FBI has used a controversial Patriot Act power to demand records from an organization that possesses ""a wide array of sensitive information about library patrons, including information about the reading materials borrowed by library patrons and about Internet usage by library patrons."" The FBI demand was disclosed in a new lawsuit filed in Connecticut, which remains under a heavy FBI gag order.
The ACLU is seeking an emergency court order to lift the gag so that its client can participate in the public debate about the Patriot Act as Congress prepares to reauthorize or amend it in September.
""Our client wants to tell the American public about the dangers of allowing the FBI to demand library records without court approval,"" said ACLU Associate Legal Director Ann Beeson, the lead lawyer in the case. ""If our client could speak, he could explain why Congress should adopt additional safeguards that would limit Patriot Act powers.""
Papers reveal that the client, whose identity must remain a secret under the gag, ""strictly guards the confidentiality and privacy of its library and Internet records."" The client is a member of the American Library Association.
The lawsuit challenges the National Security Letter (NSL) provision of the Patriot Act, which authorizes the FBI to demand a range of personal records without court approval, such as the identity of a person who has visited a particular Web site on a library computer, or who has engaged in anonymous speech on the Internet. The Patriot Act dramatically expands the NSL power by permitting the FBI to demand records of people who are not suspected of any wrongdoing.
The lawsuit, ACLU v. Gonzales, was filed on August 9, and is pending before Judge Janet Hall of the U.S. District Court in Bridgeport, Connecticut. It names as defendants Attorney General Alberto Gonzales, FBI Director Robert Mueller, and an FBI official whose identity remains under seal. Both the national ACLU and its Connecticut branch said they were forced to file the lawsuit initially under seal to avoid penalties for violating the gag provision, which they are challenging on First Amendment grounds.
The court has set an emergency hearing for Wednesday, August 31, 2005 on the ACLU's request to lift the gag.
Whether the Patriot Act has been used to obtain information about library patrons has been a flashpoint in the Patriot Act debate. The government has repeatedly dismissed the concerns of librarians that the act could force them to violate their ethical responsibility to protect the privacy of library users. Former Attorney General John Ashcroft even called these concerns about the Patriot Act ""baseless hysteria.""
Congress is currently undertaking efforts to reauthorize the Patriot Act, with both the House and Senate having passed different versions of legislation before adjourning for the August recess. While the ACLU has not endorsed either bill, it has said the Senate bill takes steps in the right direction.
""As Congress comes back to work out the differences in the House and Senate bills to reauthorize the Patriot Act, a commitment to freedom must prevail,"" said Caroline Fredrickson, Director of the ACLU Washington Legislative Office. ""The more we learn about the Patriot Act, the clearer it is that too much power was granted to the government, with too few safeguards against abuse. While neither reauthorization bill is perfect, we call on Congress to use the Senate bill as its guide as it reconsiders the Patriot Act.""
In an earlier ACLU lawsuit challenging the NSL power, a federal court issued a landmark decision in September 2004 striking down the NSL statute, saying that ""democracy abhors undue secrecy."" The court held that the NSL law violates the First and Fourth Amendments, but allowed the law to stand while the government is appealing the decision.
The United States Court of Appeals for the Second Circuit is expected to hear the government's appeal of that lawsuit this fall. The government recently asked the court to delay the appeal while Congress debates reauthorization of the Patriot Act. However, the ACLU opposes any delay, citing the need for urgent court action so that its John Doe client in the first lawsuit can also participate in the public debate.
""Judicial review is a key part to our system of checks and balances,"" said Anthony D. Romero, Executive Director of the ACLU. ""As we consider expanding and extending the Patriot Act, this case shows us what might become routine if we don't fix the law.""
The ACLU has created a special Web page on its National Security Letter litigation, which includes links to today's legal papers, online at www.aclu.org/nsl.
Attorneys in the case are Beeson, Jameel Jaffer and Melissa Goodman of the national ACLU and Annette M. Lamoreaux of the ACLU of Connecticut.
The redacted version of the ACLU's complaint is available online at: /cpredirect/20227.