Update: FBI National Security Letter to Library, Authorized by the Patriot Act, Is Challenged by ACLU

The FBI issued a National Security Letter ("NSL") to a library in Connecticut that directs the library to give the FBI "any and all subscriber information, billing information, and access logs of any person related to the following [redacted]." The NSL also warns the library that "Title 18, U.S.C., Section 2709(c), prohibits any officer, employee or agent of yours from disclosing to any person that the FBI has sought or obtained access to information of records under these provisions." The FBI's use of the NSL in Connecticut is the first confirmed use of an NSL against a library, according to the New York Times (subscription req'd). [Editor: Updated to reflect Aug. 31 gag order hearing, discussed below]

A redacted copy of the NSL is attached to a redacted copy of the Complaint that the ACLU filed against the FBI on August 9, 2005, which is available here. The ACLU Complaint alleges that 18 U.S.C. 2709 violates the First, Fourth and Fifth Amendments.

The ACLU prevailed against the FBI on similar claims last September after the FBI served an NSL on an Internet Service Provider. Doe and ACLU v. Ashcroft, 334 F. Supp.2d 471 (S.D.N.Y.), appeal pending sub nom. Doe v. Gonzales, No. 05-0570-cv. A date for oral argument has not yet been set in that case.

The Connecticut District Court conducted a hearing on Wednesday, August 31, 2005, to consider an emergency motion by the ACLU to permit its client to publicly discuss the NSL. A description of the argument at the hearing was reported by the New York Times here.

18 U.S.C. 2709, as amended by Section 205 of the Patriot Act, authorizes the FBI to issue an NSL to require the production of the names, toll billing records, subscriber names, and length of service records from an "electronic communication service provider" if the FBI Director or his designee in a position not lower than a Special Agent in Charge of an FBI field office certifies that the records are relevant to an "authorized investigation of international terrorism or clandestine intelligence activities," and that the investigation is "not conducted solely on the basis of activities protected by the first amendment . . . ." The FBI can issue NSLs administratively, i.e., without a court order. A spokesman for the Justice Department wrote in 2002, in answers to questions from Senate Judiciary Committee member Patrick Leahy of Connecticut, that NSLs could be used to obtain transactional information from libraries.

The Patriot Act's authorization for the FBI to use orders obtained under a separate section of the Patriot Act, Section 215, to obtain library and bookstore records "has been the single most divisive issue in the debate over whether Congress should extend key elements of the act after this year," according to the NY Times article. The FBI must get the approval of a Foreign Intelligence Surveillance Act court, which meets secretly, to obtain Section 215 orders. On July 21, 2005, the House of Representatives passed a bill reauthorizing the Patriot Act but applied a new, 10-year sunset to Section 215. Hill Watch, 4 Privacy and Security Law Report (BNA) 1066 (August 18, 2005). Amendments to that House measure and an earlier funding bill amendment would require the FBI Director to personally approve the issuance of an NSL to a library or bookstore and would prevent the FBI from spending any appropriated funds to carry out Section 215 in a manner inconsistent with the House amendments. Id. The Senate reauthorized the Patriot Act on July 29 but with a 2009 sunset for Section 215. Id.

The FBI will have to convince the Connecticut District Court and the Second Circuit that its use of NSLs under 18 U.S.C. 2709 and Patriot Act Section 205 is constitutional. Given that Connecticut is in the Second Circuit, any appeal of the trial court's orders in the Connecticut library case will be governed by the Second Circuit's decision in Doe v. Gonzales -- unless the ACLU prevails in that case and the Second Circuit stays its mandate pending an appeal by the government to the Supreme Court.

Posted by Randy Gainer