Taking Liberties: The War on Terror and the Erosion of American Democracy (28 page)

There are a few other librarian anecdotes publicly available. Former ALA President Carol Brey-Casiano recently told how she came close to being fired in the fall of 2001 for not turning over sign-up sheets for the computer in her El Paso, Texas, library, either in response to someone who showed up at her library identifying himself as a Texas Ranger (accompanied by an unidentified person citing the Patriot Act), or in response to a later court order. She was not able to comply with these requests because her library routinely shredded the computer sign-up sheets every night. But the Texas Ranger filed a complaint about her, perhaps feeling that she had not been sufficiently cooperative or regretful. This led to an extensive investigation during which 140 members of her staff were interrogated. The mayor of El Paso agreed to allow her to remain in her job pending the investigation only if she promised not to tell anyone what was happening—an informal gag order.
²⁷

Only one other librarian has contested a National Security Letter, so far as we know. Brewster Kahle, founder of the Internet Archive, a digital library used by researchers, historians, scholars, and government agencies, received a demand for personal information about one of the archive’s users, including name, address, and “electronic communication transactional records.” The demand included a gag order. He turned to the Electronic Frontier Foundation, which, together with the ACLU, brought a lawsuit challenging the constitutionality of the NSL. He believed that the NSL in his case was actually improper under the terms of the statute itself.
²⁸
As had happened to George Christian, Brewster Kahle could not tell his own Board of Directors about the NSL, the legal issues it presented, or his decision to litigate. And his lawyers could not talk about this instance of NSL usage directed at a library even though one of those lawyers, Jameel Jaffer, was testifying on behalf of the ACLU at a congressional hearing on the FBI’s use and misuse of NSLs. The case was settled, with results
similar to the ultimate resolution of the Library Connection case. The FBI agreed to lift the gag order in part, to allow Brewster Kahle and his attorneys to talk about their experiences with this NSL. As had happened in the case of the Library Connection officers, the only other librarians to challenge an NSL, the government also withdrew the NSL request for information about a library patron. For its part, the Internet Archive agreed not to disclose the contents of the demand, the same distinction the Library Connection Four had been willing to observe. If the demands that were litigated were representative of the kind of information the government used NSLs to get librarians to provide, it may not be essential to use NSLs in libraries after all.

It seems unlikely that these two examples—Library Connection and the Internet Archive—are the only instances in which NSLs have been served on a library given that there have been hundreds of thousands of NSL requests. But we don’t know. In 2003 the House Judiciary Committee asked Assistant Attorney General Viet Dinh how many times a Section 215 court order had been issued to libraries and was told that the answer was classified.
²⁹
In 2007, the Senate Judiciary Committee asked the FBI how many NSLs had been served on libraries in 2007 and was told that figure was unknown but determinable.
³⁰
The answer may have been transmitted to Congress, but it was not made public.
³¹
Appearing on a panel at a bar association event in New York, Viet Dinh was later asked what he had learned from his experiences with the Patriot Act. His response? “Don’t ever cross librarians!”

The expanded NSL provision, Section 505 of the Patriot Act, had not been scheduled to sunset in 2005 but, following the
John Doe
litigation brought by the Library Connection Four and the Internet service provider described in the next chapter, Congress nevertheless made some changes to this provision. Two of those changes—concerning the rights of NSL recipients and the gag order—will be discussed more fully in the next chapter. Another was a theatrical gesture in the direction of exempting libraries from National Security Letters—a sop for the librarians.
³²
Language in the revised law says that a library functioning in a “traditional role” is not subject to an NSL—unless it is providing “electronic communication services.”
³³
The exception swallows the exemption because any library providing Internet service—basically every library in the country—is still subject to NSLs. (If the intimation of the amendment seems to be that “traditional” library transactions, like borrowing a book, are now protected, it is worth noting again that the NSLs never applied to the contents of
“traditional” records, like the identity of people who borrowed books, in any event.) FBI Director Robert Mueller, in a letter responding to a Senate Judiciary Committee inquiry, opined that the new librarian-appeasing language “did not actually change the law.”
³⁴
During the second round of reauthorization hearings, beginning in 2009, Section 215 and its application to libraries was once again a subject of debate, as the previous chapter described, but that provision was extended without any modifications. Limiting the scope of National Security Letters, like the scope of Section 215, continues to be the subject of a number of proposed bills as this book goes to press.

Even if Congress favored any of the proposed revisions, the modification to the Patriot Act authority granted would be small and would have been slow in coming. This seems surprising in light of the widespread support the librarians generated. The public reacted viscerally to the specter of the FBI in the library, more so than to any of the other Patriot Act revisions of the law.
³⁵
Both Section 215 and the NSL threaten First and Fourth Amendment values of librarians and their patrons by exposing so much private information to the government with so little oversight. This is a significant threat. But fewer people have been aware of the absolute, permanent gag order the Library Connection Four challenged, a limitation on speech that compromises democracy itself. As Elaine Scarry so elegantly put it, the combination of government-imposed secrecy and individual loss of privacy not only inverts the preconditions for democracy, but also cuts off the “avenues of repair.”
³⁶
How can the American people make sound decisions about the acceptability of something like the “library provision” if everyone who knows how that provision has actually been used is silenced?

The best place to end this story is with Janet Nocek’s invitation: “Let the American people decide whether a shroud of secrecy has descended upon all of us that might affect not just a few librarians, but any ordinary ‘John Doe.’”

9.
John Doe and the National Security Letter

No more National Security Letters to spy on citizens who are not suspected of a crime.
—Candidate Barack Obama (2007)

My name is not John Doe and this is not my real voice.
—Unidentified actor reading a statement written by “John Doe” (2007)

T
HE LIBRARY CONNECTION
Four lived under government-imposed silence for about the length of a pregnancy. The John Doe who preceded and inspired them, the president of a small Internet access and consulting business in New York, was gagged for over six years. When he received a National Security Letter in February 2004 demanding that he provide information about one of his clients, “Doe” says he immediately noticed two things: that there was no judge’s signature and that he was commanded not to tell anyone, ever, about his grave concern that this demand was unconstitutional. With no precedent to reassure him, he nevertheless dared to consult lawyers at the ACLU and go to court even though he was always aware that challenging the government might not be easy. “Doe” says that when he met with his lawyers for the first time, he asked them, “How do I know if I file this lawsuit they won’t put me in a sack and drag me away?” When the lawyers told him that they could not predict what would happen, he replied that he was nevertheless willing to go ahead.

The lawsuit he filed in April 2004 to challenge his National Security Letter was originally entitled
John Doe v. Ashcroft
. As the years passed, it was renamed
Doe v. Gonzales
, then
Doe v. Mukasey
, and then
Doe v. Holder
, as each successive Attorney General took office. In an anonymous 2007 op-ed in the
Washington Post
, “Doe” described living under this prolonged regimen of silence as “stressful and surreal”:

When I meet with my attorneys I cannot tell my girlfriend where I am going or where I have been. I hide any papers related to the case where she will not look. When clients and friends ask me whether
I am the one challenging the constitutionality of the NSL statute, I have no choice but to look them in the eye and lie.
¹

Amy Goodman of
Democracy Now
co-wrote a book in which she mentioned John Doe’s story—but without knowing at the time that the John Doe she was describing happened to be someone she knew.
²
Although Obama Administration lawyers initially argued that John Doe had to keep concealing his identity for national security reasons, they ultimately agreed to a compromise settlement in the summer of 2010. After more than six years of forced guile and deceit, “John Doe” could finally reveal his secret identity: Nicholas Merrill, whose Internet company, Calyx Internet Access Corporation, served clients ranging from IKEA to Snapple to
Democracy Now
. Why did Nick Merrill risk litigating despite the gag order and then keep litigating for over six stressful years? In his own words:

[I]t’s a total cliché, but, you know, all that’s necessary for evil to triumph is for good men to do nothing. I felt this was something I had to do. And as an internet provider or a systems administrator or a telephone technician, you have a lot of information that paints a really vivid picture about people’s personal, private lives and communications.
³

In addition to challenging the gag order, Nick Merrill challenged the National Security Letters themselves, arguing that the Patriot Act provision expanding their use violated the First and Fourth Amendments. It was important to him that his lawyers urge not only widely known First Amendment free speech rights, but also less appreciated Fourth Amendment privacy rights. Nick had taken Constitutional Law at Hampshire College and had considered at one point becoming a lawyer because the rights he learned about, including the Fourth Amendment, seemed to him to be critically important. As it turned out, he found a way to defend those rights without going to law school. Since his lawsuit began, the National Security Letter has become a key battleground where dragnet surveillance methods contend with fundamental constitutional values of privacy and free speech, where our desire to trust the executive branch is challenged by the fact that we know abuses are engendered by secrecy, and where secrecy’s threat to democracy is most apparent.

One reason NSLs loom large is that, unlike the infrequently used Patriot Act section that had become known as the “library provision” before George Christian discovered that nickname was misplaced, National Security Letters have been used for hundreds of thousands of “requests.”
Another is that, as the last chapter suggested, National Security Letters take one more giant step away from Fourth Amendment norms beyond even the hollow “library provision” court orders: the letters need not be preceded by any individualized suspicion and they do not involve any court at all. The FBI decides when to use them and then requires the people who experience this technique firsthand to remain silent, on pain of federal prosecution. Because NSLs are used against electronic service providers, including both librarians and Internet service providers, First Amendment values are very much at stake. If the FBI can indeed use a self-service NSL to gather information about what websites Internet users visit or what e-mail addresses appear in their correspondence, the government has much of the Big Brother power the librarians feared, but with no judicial check at all.

The Library Connection plaintiffs challenged the NSLs themselves as well as the gag orders, but they only actually litigated the constitutionality of the gag orders. Like the Library Connection Four, Nick wanted to testify before Congress but was not allowed to do so. He would have told Congress that he believed that gag orders do damage beyond preventing Americans from speaking to their own legislators and courts—they actually enable abuses of power by giving government agencies too much space to hide. At the time Nick started his lawsuit, the public, like George Christian’s first lawyer, knew very little about National Security Letters. Barton Gellman’s informative 2005
Washington Post
article had not yet been published; no other court had been asked to consider the constitutionality of this authority; and Congress was not doing much in the way of oversight. The ACLU had succeeded in getting some documents pertaining to the use of NSLs released in Freedom of Information Act litigation: six almost entirely blacked-out pages, which suggested that NSLs were being used, but not to what extent.
⁴
As more was revealed over time, Nick’s fears proved to be quite justified. The chain of events set in motion by his lawsuit led Congress to a long overdue decision to exercise greater oversight over the use of National Security Letters, leading in turn to shocking revelations about how the FBI behaved when it was not being checked by Congress, the courts, or the people themselves. In May 2007, the Inspector General of the Justice Department reported that by that date, the FBI had racked up about 3,000 violations of its own NSL rules and procedures, and had provided false information to Congress in the few areas where it did report.
⁵
That secrecy could cover up abuse of power was no longer just a hypothetical fear. Had Nick and the Library Connection officers been
permitted to share their experiences and their concerns with Congress and the public earlier, might some of that abuse have been averted?