Sept. 22, 2005 – Free speech advocates lost a round in court Tuesday as a three-judge federal appeals court panel found in favor of the FBI in a case involving the secret seizure of records from a Connecticut library. An anonymous library associate is seeking freedom from a mandatory FBI-imposed gag in order to testify to Congress about the speech-chilling effects of search provisions in the USA Patriot Act.
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The decision stayed a lower courtâ€™s ruling. Earlier this month, US District Judge Janet C. Hall ruled that federal lawyers failed to show any compelling reason for preventing the library employee from revealing that the institution had been the subject of an FBI search seeking records of individual patrons.
Tuesdayâ€™s ruling delays Judge Hallâ€™s removal of the gag and expedites the appeals process, under which the FBI seeks to overturn Hallâ€™s findings altogether.
The "John Doe" client of the American Civil Liberties Union wants to introduce information on FBI investigations of library patrons into the ongoing â€“ and possibly soon-to-be completed â€“ joint Congressional discussion on renewing and expanding the Patriot Act.
Under a decades-old law, the Bureau can use a secret subpoena, free of judicial oversight, to secure patron records from libraries, bookstores and similar businesses and institutions. Called a national security letter (NSL), the subpoena imposes a mandatory gag order on its recipient.
The original law establishing NSLs restricted their use to active investigations. In passing the Patriot Act, Congress removed that limitation, prompting challenges from the ACLU, the American Library Association and others.
Bush administration officials have publicly insisted that the FBI had not used the provision to seek library records. But the ACLUâ€™s client is the recipient of one, but instead of complying with the search, he decided to challenge it in court. The first order of business for the plaintiffs and the ACLU was to seek an exception to the gag order so that Doe could tell Congress that the government is, in fact, using the Patriot Act to search library records.
In her written opinion on the earlier case, Judge Hall noted that such testimony would carry greater weight if Congressional leaders knew that it came from someone who had been the recipient of an NSLs.
The case is now on an expedited schedule, with the first government brief due by September 27 and the ACLUâ€™s response by October 4, the civil liberties group said.