A Stitch in Haste

Historically, terrorists and spies have used libraries to plan and carry out activities that threaten our national security. If terrorists or spies use libraries, we should not allow them to become safe havens for their terrorist or clandestine activities.
--Official PATRIOT Act Website

Almost from the time when the PATRIOT Act was just a bill working its way through Congress, civil libertarians warned about one particularly ominous aspect of the legislation: the "National Security Letter" --

Simply by issuing a National Security Letter, the FBI can force Internet service providers, universities and other institutions to turn over customer records.

Even more disturbing, anyone who receives an NSL is gagged — forever — from telling anyone that the FBI demanded records.

Civil libertarians warned from the beginning that NSLs could be used to obtain, without a warrant, the user records of libraries (i.e., who had been checking out which books or using the library's public Internet access, or the library's billing records).

Defenders of the PATRIOT Act insisted that this was a bizarre interpretation of the law's provisions, one that the federal government had no intention of actually using.

Ahem:

The American Civil Liberties Union has filed a lawsuit to block the FBI from obtaining records from an organization that holds information about library patrons.

The civil liberties advocacy group released a government-censored version of the lawsuit Thursday.
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The ACLU said its client "possesses a wide array of sensitive information about library patrons, including information about the reading materials borrowed by library patrons and about Internet usage by library patrons."

The case is ACLU v. Gonzales, and is before Judge Janet Hall of the U.S. District Court in Connecticut.

I'm embarrassed to admit I'm not fully-versed in all the nuances of the PATRIOT Act or how it crosses swords with the First Amendment and Fourth Amendment. I'll leave that to others.

I just find it limitlessly ironic, depressing and scary that the federal government can simultaneously claim that citizens and libraries have no expectation of privacy in their records while also asserting that it does have an expectation of privacy in the content of public court pleadings, to the point where it can actually redact the litigants' names. It boggles the mind.

The terrorists want to destroy our way of life. Maybe they're succeeding.

More thoughts at Crime & Federalism.

POST SCRIPT #1: The ACLU has already won a previous lawsuit against the FBI over pretty much the same NSL fact pattern, including redacted pleadings. That case is currently on appeal before the Second Circuit.

POST SCRIPT #2: Did you know that the URL of the official government website for the PATRIOT Act is "http://www.lifeandliberty.gov"? Orwell would be proud. Maybe next they'll reassign the IRS website to "http://www.pursuitofhappiness.gov"...

UPDATE #1: The judge in the case has lifted the gag order, effectively striking down this provision of the PATRIOT Act. The judge stayed her own order until September 20, however, to give the government an opportunity to appeal.

UPDATE #2: The Second Circuit Court of Appeals has temporarily reinstated the gag order pending the government's appeal to that court.

UPDATE #3: The Supreme Court, in the form of Justice Ginsburg, has denied a request for an emergency appeal. This is not surprising, is not equivalent to a denial of certiorari, and mererly means that the standard appellate process will proceed.

I was blogging about National Security Letters ("NSLs") before it was fashionable, as I reported on a case working its way through the federal courts in which the plaintiffs — who are forbidden by the PATRIOT Act from even identifying themselves — are challenging the constitutionality of NSLs.

To review, an NSL is simply a demand by the government for information. Which, in a sane world still governed by the Fourth Amendment, would require a warrant issued by a judge based upon probable cause. But this is no longer a sane world governed by the Fourth Amendment. Not only is no warrant needed, not only is no demonstration of probable cause needed, but the entire process is kept completely secret, supposedly justified by "national security" (hence the term "national security letter").

The subjects of NSLs never know that their information has been turned over to the government. What's worse, the entities ordered by the government to turn over information are not even allowed to disclose that fact. The suppression of disclosure is so thorough that even the pleadings in lawsuits challenging NSLs must be redacted to conceal the institutions' identities (it is generally believed that the plaintiffs in the most publicized litigation are university libraries that are challenging NSLs for foreign students' checkout records).

Now comes word that the use of NSLs, which the government initially assured the public would be sparingly if ever used, has reached epidemic proportions:

The FBI now issues more than 30,000 national security letters a year, according to government sources, a hundredfold increase over historic norms. The letters — one of which can be used to sweep up the records of many people — are extending the bureau's reach as never before into the telephone calls, correspondence and financial lives of ordinary Americans.
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The Bush administration defeated legislation and a lawsuit to require a public accounting, and has offered no example in which the use of a national security letter helped disrupt a terrorist plot.

Perhaps I'm too cynical, but I have no doubt that the reason the government has not offered any example of an NSL actually stopping a terrorist is because it has never happened.

But wait, there's more:

In late 2003, the Bush administration reversed a long-standing policy requiring agents to destroy their files on innocent American citizens, companies and residents when investigations closed. Late last month, President Bush signed Executive Order 13388, expanding access to those files for "state, local and tribal" governments and for "appropriate private sector entities," which are not defined.

So now not only is the Fourth Amendment optional, but so too is the notion that private information seized in named of "national security" should be shared within government on a "need to know" basis only. Heck, give it to states, to Indian tribes, to Halliburton — the more the merrier.

Someone has to start standing athwart all this yelling "Stop!" Again, in a sane world that would be the responsibiility of the courts. But even they're cowering in the face of the PATRIOT Act and deferring to "the experts" in deciding just how far the War on Terror will overlap the War on Privacy.

To the extent the goal of the terrorists is "to destroy the American way of life," they are succeeding — with the help of the PATRIOT Act, the FBI, the White House, and the spineless courts.

Hopefully the current NSL cases in Connecticut and the Second Circuit will be the beginning of the end of NSL abuse, and perhaps of the PATRIOT Act itself.

More thoughts at Crime & Federalism, Hammer of Truth, LP Blog.

(And remember: The fact that you have read this blogpost may end up in a government database somewhere. Have a nice day.)

So first we learn that the NYPD is sending covert agents, not only outside New York City, not only outside New York State, but even outside the country to collect data on law-abiding citizens engaging in law-abiding activities.

Now we learn that even car rental agencies and mortgage companies are playing the pawns of Big Brother:

The Office of Foreign Asset Control's list of "specially designated nationals" has long been used by banks and other financial institutions to block financial transactions of drug dealers and other criminals. But an executive order issued by President Bush after the Sept. 11, 2001, attacks has expanded the list and its consequences in unforeseen ways. Businesses have used it to screen applicants for home and car loans, apartments and even exercise equipment, according to interviews and a report by the Lawyers' Committee for Civil Rights of the San Francisco Bay Area to be issued today.

"The way in which the list is being used goes far beyond contexts in which it has a link to national security," said Shirin Sinnar, the report's author. "The government is effectively conscripting private businesses into the war on terrorism but doing so without making sure that businesses don't trample on individual rights."

Because of course there's always the risk that al Qaeda will fly a sub-compact — or a mortgage — into a skyscraper.

And it is of course not al Qaeda whose transactions are blocked. People with partial name matches get flagged, and the penalties for firms that "do business with terrorists" are so draconian that it makes more sense for them to simply decline the business rather than risk a run-in with the government.

Implementing a (hopefully) reliable system of keeping "suspicious" (defined how?) individuals off commercial airliners is not per se irrational. Keeping "not truly suspicious" people from renting a car or getting a home equity loan is per se irrational — as is conscripting private businesses to do to the government's work.

Meanwhile, keep in mind that even before the War on Terror, utilities could and did gleefully turn over customer records, on the (preposterous) Supreme Court reasoning that a person has no reasonable expectation of privacy in their phone or electric bill. One must also assume that the same reasoning would apply to pay-per-view purchases and DVD rentals.

It is still unsettled as to how private one's library usage may be. And we were also just told that the FBI has been so slap-happy with its use of National Security Letters and FISA warrant applications, that even they can't calculate exactly how many times they've broken the law.

So I ask again: Is there anyone who isn't spying on us?

The terrorists want to destroy our way of life. They are succeeding.