[Infowarrior] - Librarians Win as U.S. Relents on Secrecy Law

[Richard Forno]

April 13, 2006
Librarians Win as U.S. Relents on Secrecy Law
By ANAHAD O'CONNOR
http://www.nytimes.com/2006/04/13/nyregion/13library.html?_r=1&oref=slogin&p
agewanted=print

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.