If you follow the FBI and libraries issue, no doubt by now you know a federal court in Connecticut ordered the Department of Justice to allow "Doe" (the library entity challenging a national security letter for patron records) to reveal its identity.
That order is stayed until September 20, 2005 to give an opportunity for an appeal.
The ACLU is asking folks to sign a petition asking Attorney General Gonzales to lift the gag.
Minow take: There are times when it's appropriate to gag a recipient of a National Security Letter - e.g. if it could tip off a terrorist suspect that s/he's being watched. Even seemingly innocuous pieces of information, when pieced together with other information can tip off terrorists as to the focus of ongoing counterintelligence (i.e. "a mosaic.")
There was not enough evidence in this case, however, to even make a viable mosaic argument, according to the court. Of course, I didn't see the classified material to come to that conclusion, but the federal court did. It ruled that revealing Doe's identity will not harm the investigation.
Doe's First Amendment rights, on the other hand, are harmed by the gag. The law, (18 U.S.C. 2709(c)) is overbroad, going so far as to prohibit recipients like Doe from ever disclosing its identity, even after the case is closed in the distant future.
As the Court wrote, "Considering the current national interest in and the important issues surrounding the debate on renewal of the PATRIOT Act provisions, it is apparent to this court that the loss of Doe’s ability to speak out now on the subject as a NSL recipient is a real and present loss of its First Amendment right to free speech that cannot be remedied. Doe’s speech would be made more powerful by its ability to put a “face” on the service of the NSL, and Doe’s political expression is restricted without that ability. Doe’s right to identify itself is a First Amendment freedom independent from Doe’s right to speak generally about its views on NSLs. Doe’s statements as a known recipient of a NSL would have a different impact on the public debate than the same statements by a speaker who is not identified as a recipient."
p.s. Raizel and I are working on updating my Post-Patriot orders chart - at least the National Security Letters and Section 215 sections - since so many people get them confused. We'll add court challenges, key govt and librarian claims etc. We want to make it into a wiki - Does anyone know how to easily put a chart into a wiki - or even maybe wanna give us a hand setting up the wiki?
The case has been appealed to the Second Circuit, with a stay ordered of the lifting of the gag order, consequently Doe can't yet talk about FBI seeking records. The appeal is on an expedited schedule, with the final brief due October 10th.
Posted by: Raizel | September 21, 2005 at 08:12 AM