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Sample Letter Urging Librarians to Warn Patrons of Government's New Domestic Spying Powers Under the USA PATRIOT ACT
July 30, 2003
Dear Librarian,
Just 45 days after the September 11th attacks, almost without debate, Congress passed an antiterrorism bill that gives the federal government expanded authority to search your business or library records, including the titles of the books purchased or checked out by your library patrons. This letter contains our best suggestions on what you should do if you are served with a court order under the Foreign Intelligence Surveillance Act (FISA).
Under the new law, the director of the FBI may seek an order "for any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities." The request for such an order is made to a judge who sits in a special court, and the decision is made "ex parte," meaning there is no opportunity for you or your lawyer to object in court.
You cannot object publicly either. The new law includes a gag order that prevents you from disclosing "to any other person" the fact that you have received an order to produce documents.
The ACLU is deeply concerned by the potential chilling effect of court orders issued to booksellers and librarians under this new law. Normally, when a bookseller or librarian are served with a subpoena for customer or patron information, he or she has the opportunity to ask the court to quash the order on First Amendment grounds.
Under FISA, however, booksellers and librarians may not have this chance. Depending on the wording of the order, the bookseller or librarian may be required to immediately turn over the records that are being sought.
Nevertheless, the ACLU's advice to booksellers or librarians who receive a court order under FISA remains the same as it is to those who receive other subpoenas. The first thing you should do is call your attorney. Then, either you or your attorney should contact the ACLU of Florida so that we can put you in touch with lawyers who are familiar with the law surrounding the privacy of library records.
Although the wording of the law seems to suggest that contacting anyone about the court order is forbidden, it is the ACLU's belief that you remain entitled to legal counsel. Therefore, you may call your attorney and/or the ACLU of Florida. Because of the gag order, however, you should not tell the ACLU that you have received a court order under FISA. You can simply tell us that you need to contact ACLU's legal counsel.
Legal counsel is important even in cases where it is not possible to challenge a court order. It may be possible for you to have a lawyer present during a search of your library records. If so, the lawyer will be able to help you ensure that there is no violation of the privacy of your other library patrons.
However, it is possible that the FBI will demand immediate access to your records. If the agents are unwilling to permit you to contact your attorney, you should cooperate with them. Otherwise, you may be arrested for disobeying a court order. If you have no choice but to turn over records, the best thing you can do is help the FBI find the information that it is looking for and thus avoid exposing the records of other customers. If you have legal questions after the search had been conducted, you can call your attorney or the ACLU will put you in touch with its lawyers.
At times of national crisis, civil liberties are very vulnerable. However, the ACLU does not believe that we must sacrifice freedoms in order to protect ourselves from future attacks. While we at the ACLU feel as strongly as anyone that the perpetrators of terrorism must be brought to justice, we also feel that America's freedom ? the very essence of our national character ? must be protected as we respond to the threat of terrorism within our borders. Americans can be both safe and free.
That is why we have filed the first
direct constitutional challenge to the USA PATRIOT Act. Specifically,
the ACLU is challenging Section 215 of the PATRIOT Act, which vastly
expands the FBI's power to spy on ordinary people living in the United
States including U.S. citizens and permanent residents.
The ACLU is challenging Section 215 of
the USA Patriot Act because it violates the privacy rights of
all Americans, and threatens their First Amendment rights to say what
they want, associate with the groups they choose, and freely practice
their religion.
There is no limit to the kinds of information the FBI can get under
Section 215. We want to stop the use of Section 215 not only in libraries,
but also in hospitals, bookstores, schools, charities, etc.
We are asking you to join us in the fight against the Patriot Act
by educating the public about the problems with this law. One way
is to use the enclosed placard as a guide to notify your patrons that
their records are at risk. Our goal is to minimize Section 215's impact
on every American, and to ensure that everyone knows about the dramatic
changes that have occurred in our legal system since September 11th.
We thank you on behalf of all who treasure the right to read, speak, and think as free Americans under our Constitution.
Yours very truly,
Howard Simon
Executive Director
ACLU of Florida
