Library must stay mum
on Oct 7, 2005 at 7:51 pm
The first Supreme Court case testing the government’s “war on terrorism” power to demand information about library users of the Internet, and to keep the libraries from talking about such demands, brought at least a short-term victory for government secrecy Friday. Justice Ruth Bader Ginsburg, saying she felt a need to act with caution, refused to permit a Connecticut library group to speak out about its plight.
Ginsburg’s order, together with a Second Circuit stay that she declined to lift, will mean that secrecy will be maintained for at least a month. That period could stretch out if, in the meantime, Congress amends the underlying law at issue — the so-called “PATRIOT ACT.”
The case is deeply immersed in secrecy — even reaching the Court as a “John Doe” case. Ginsburg’s opinion had several phrases censored out; those dealt with changes in circumstances recently. But those changes remained obscure, because the brief filed in support of lifting the “gag order” remains under seal. Diligent news organizations, however, have identified “John Doe” as the Library Connection, a coalition of libraries based in Windsor, Conn. The New York Times, for example, has identified the group by name, saying it “serves as the back office for many libraries in the Hartford area.”
The case, as it reached the Supreme Court, was not about the FBI’s authority to demand library records about someone whose Internet use is being examined by the Bureau in a terrorism investigation. Such demands are called “National Security Letters.” The constitutionality of those provisions is now at issue in a separate case pending before the Second Circuit, following a ruling a year ago by a federal judge striking down those provisions.
Rather, the dispute that Justice Ginsburg faced (as “Circuit Justice” for the area that includes Connecticut) is about a peculiar provision in the Act that forbids a group or person receiving such a “Letter” to tell anyone about it — the entity cannot identify itself publicly as a recipient, or otherwise discuss the “Letter” or what it demands.
Chafing under that “gag order” after it got a “Letter” from the FBI, the Connecticut group, joined by others, sued the federal government in federal court. The lawsuit claimed that the provision was a “prior restraint” on First Amendment free-speech rights. U.S. District Judge Janet C. Hall of Bridgeport, Conn., on Sept. 9 barred enforcement of the “gag” provision against “John Doe,” saying that groups like it were the only entities who possess specific facts “about the reach of broad, federal investigatory authority” and yet are barred from “discussing their experience with the public.”
The Second Circuit, however, has blocked Judge Hall’s order while it reviews the constitutional questions at stake. With the case on an expedited schedule there, the final brief is due on Monday. “John Doe” and its backers, however, took the dispute on to Justice Ginsburg, asking her to lift the stay so that the Connecticut library group could join in the public debate over whether Congress should renew the provision at issue. They told Ginsburg that “John Doe” only wants to identify itself, and does not want to talk about what the FBI demanded, or even when it received that demand.
Ginsburg turned them down. “In view of the character of the constitutional issue presented and the expedited schedule ordered by the Court of Appeals, I deny the application…” She issued a seven-page opinion, six pages of which were background. The final page gives her reasons.
Ginsburg called the challengers’ argument “cogent,” but said she was leaving the stay in place because of “several countervailing considerations.”
Here, in summary, are those reasons:
1. The stay issued by the Circuit Court is an interim order only, and that argues against interference.
2. Respect for the Circuit Court’s assessment of the situation was “especially warranted” since the Circuit Court is moving rapidly to decide the case on the merits. She said she expected a hearing and a ruling shortly.
3. Judge Hall’s order struck down an act of Congress, as it applied to “John Doe,” and that “warrants cautious review.”
4. “John Doe” has been identified in the legal papers in the case as a member of the American Library Association, and that trade group is free to speak out on the “gag order” and to note that one of its members has received one of the FBI “Letters.”
The American Civil Liberties Union, which is representing “John Doe” in the case, called Ginsburg’s denial “only a procedural setback in our lawsuit.” A hearing at the Circuit Court is scheduled for Nov. 2 — both on the gag order issue, and on the validity of the “National Security Letters.” The cases have been consolidated, so that the Circuit Court apparently will be reviewing all aspects of the Letters law.
In the meantime, Congress is considering a batch of bills that would amend those provisions. At this point, it is unclear what would happen with the existing test cases if significant amendments are made. At a minimum, the court review would be slowed considerably.
