Warning! Check with your lawyer before responding to FBI national security letter requests for patron records

You might be liable if you give out patron records to FBI agents who present you with seemingly authentic National Security Letters (NSLs).  Talk about twists and turns.  Unless your lawyer is already on top of these issues, you should point out this case to him or her.

When Chris Haase first told me that the ACLU had won its lawsuit challenging the constitutionality of a Patriot Act National Security Letter (NSL) provision, I hadn't thought about its full impact on libraries.  Today when I read cyberattorney Parry Aftab's analysis for businesses [Information Week, The Privacy Lawyer: Privacy Policies And The Patriot Act Nov. 8, 2004], I realized her warning to businesses applies to libraries too.  In fact, even more strongly, since state law protects library patron records, not just company policy.

Aftab writes:

If the decision is not overturned, you may not be able to rely on the Patriot Act to protect you if you don't inform your subscribers of a governmental inquiry. Make sure your counsel understands the laws and your policies and can guide you when government or anyone else comes knocking.

Background: A federal district court (S.D.N.Y.) ruled in Sept. that the national security letters legal authority (at least NSLs authorized by 18 U.S.C. 2709) is constitutionally flawed. The government still has time to appeal the decision.

For now, if our institutions have privacy policies that state that we will not share personal information about users except through valid legal process (especially policies that say that users will receive notice, except to the extent prohibited by law), we should know that some NSLs may not be valid.  Call this the full employment act for lawyers.

John Doe and American Civil Liberties Union v. Ashcroft, 04 Civ. 2614 United States District Court for the Southern District of New York September 28, 2004

Personal note for ASquared: The reason I'm prolific today on the blog is because I'm supposed to be doing billing which I am avoiding cuz I hate doing that.  I hereby blogswear to get that done before I post again.

The court held that

(1) the restriction on any disclosure about the NSL or its issuance, to anyone, in perpetuity is overbroad and open ended and, as such, violates the First Amendment of the U.S. Constitution, and (2) the NSL recipient's inability to have the NSL reviewed by a court violates the Fourth Amendment to the U.S. Constitution. Because the court held that the restraint subsection under the statute could not be severed from the remainder of the statutory provisions, the entire Sec. 2709 would have to be struck down.

Comments

[ABbi]

blocking myspace violates the first ammendment. It should be allowed in schools,but a censor should be applied so that students cannot post innappropriate pictures or swear

[Mary]

thanks - that's an important point

You should note that Judge Marrero ordered his decision stayed for 90 days or for the pendancy of any appeal (see the ordering clause on page 120 of the decision.) Thus, the judgment issued by the court will not be effective any earlier than December 27, 2004; and the government has already stated its intention to appeal Judge Marrero's decision. Unless the government fails to file a timely appeal, the statute authorizing NSLs will remain valid until the appeal terminates or the appellate court issues a countervailing order. This is likely to be a substantial period of time - probably a year or more, if the appeal is taken to the Supreme Court.

[Christopher]

Very good article and advice...I cited your article in my atricle at ~

http://lostinamerica.blogs.com/lost_in_america_finding_o/2004/11/utilization_of_.html#comments