Thursday, April 13, 2006

Librarians Win as U.S. Relents on Patriot Act Secrecy Law

The New York Times
Librarians Win as U.S. Relents on Secrecy Law

After fighting ferociously for months, federal prosecutors relented yesterday and agreed to allow a Connecticut library group to identify itself as the recipient of a secret F.B.I. demand for records in a counterterrorism investigation.

The decision ended a dispute over whether the broad provisions for secrecy in the USA Patriot Act, the antiterror law, trumped the free speech rights of library officials. The librarians had gone to federal court to gain permission to identify themselves as the recipients of the secret subpoena, known as a national security letter, ordering them to turn over patron records and e-mail messages.

It was unclear what impact the government's decision would have on the approximately 30,000 other such letters that are issued each year. Changes in the Patriot Act now allow the government discretion over whether to enforce or relax what had been a blanket secrecy requirement concerning the letters.

Lawyers for the group, the Library Connection of Windsor, Conn., argued that their client was eager to participate freely in the debate last year over the reauthorization of the Patriot Act. But federal prosecutors asserted that the Patriot Act required that the group's identity remain secret and that the government would suffer irreparable harm if any information about its investigations became known.

The decision by the Justice Department to drop the case was applauded by the American Civil Liberties Union, which brought the lawsuit on behalf of the librarians. The civil liberties group said it would identify its clients at a news conference once court proceedings in the case are completed in a few weeks.

"We are obviously very much looking forward to the day where they can explain how it felt to be under threat of criminal prosecution for merely identifying themselves," said Ann Beeson, the civil liberties union's associate legal director. "The clients are happy that the fight over this gag is nearing its end."

Kevin J. O'Connor, the United States attorney in Connecticut, said yesterday that the government decided drop its case largely because the Patriot Act's secrecy provisions concerning national security subpoenas were changed to give the Federal Bureau of Investigation discretion in allowing recipients to identify themselves.

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. Government lawyers failed to redact all of their references to the Library Connection in court filings, leading to the disclosure of the group's identity in The New York Times and other newspapers.

"Certainly that was a factor," Mr. O'Connor said. But he said "the legal basis" for the decision was the change in the Patriot Act giving the government the authority to allow recipients of the subpoenas to identify themselves.

"For both practical and legal reasons, we have determined that continuing to pursue this appeal does not make sense," he said.

Mr. O'Connor was in the process of appealing a decision by a federal district judge last September to allow the library to identify itself, saying the nondisclosure provision in the national security letter violated the library's First Amendment rights.

That appeal is pending in the United States Court of Appeals for the Second Circuit in New York.

Mr. O'Connor said that in light of the changes to the Patriot Act, the Justice Department would re-examine whether the secrecy requirements that apply to recipients of past national security letters should continue to be enforced.

He said the government would also make a determination when sending future letters whether the recipient would be prohibited from saying he had received one.

George Christian, the executive director of Library Connection, a cooperative of 26 libraries that share an automated system, has answered "no comment" when asked about the case by reporters. He did not respond to several messages seeking comment last night.

According to court records, the federal government's national security letter to Library Connection last year asked Mr. Christian to "personally" hand over records that might be of use in a counterterrorism investigation and that he not disclose the matter "to any person."

But the group challenged the request in federal court, arguing through its lawyers that it wanted the ban lifted immediately. The group said that time was of the essence in lifting the ban because the Patriot Act was set to be reauthorized by Dec. 31 and, as a party with an interest in the matter, it wanted the right to speak out against the act.

United States District Judge Janet C. Hall agreed with the group, ruling last year that the order of silence should be lifted. But the federal government appealed the decision, ultimately preventing the group from weighing in on how the Patriot Act should be rewritten before the Dec. 31 deadline.

Ms. Beeson said yesterday that she believed the government's decision to drop the appeal was politically timed.

"The issue over whether the government was using its Patriot Act powers to demand library records was one of the hot-button issues in this debate," she said. "And our clients could have been extremely powerful spokespeople in opposing the reauthorization of the act, because they had actually received one of those national security letters."

Now that the debate in Congress is over, she said, "There's no longer any reason to keep our clients quiet."

Mr. O'Connor dismissed that argument and said that the language in the Patriot Act was such that the federal government had no choice but to insist that Library Connection refrain from speaking out.

"I know it's being perceived as a flip-flop, but that is simply not the case," he said.