A three-judge federal appeals panel, which includes Yale Corporation fellow Judge Barrington Parker Jr., began considering last Wednesday whether to uphold two lower court rulings that would curtail a provision allowing the Federal Bureau of Investigation to demand personal records without court approval — a practice that could affect Yale library patrons.
Parker, who has been a judge on the Second Circuit Court of Appeals since 2001, is serving on the panel with federal judges Richard Cardamone and Joseph McLaughlin. The two cases involve challenges brought by the American Civil Liberties Union, which claims that expanded FBI powers — created by Section 505 of the Patriot Act — to request records from libraries and Internet service providers in New York and Connecticut are unconstitutional. Yale General Counsel Dorothy Robinson said the outcome of the appeals will be important to the University, whose library patrons could be subject to records searches.
“The Patriot Act provisions that expanded government access to business records are a concern, not only because of their scope but because of the prohibitions on disclosure,” Robinson said in an e-mail.
The plaintiffs presenting their case to the panel claim the new provisions give the FBI excessive power to not only issue requests for documents without judicial supervision, but also impose an unconstitutional permanent gag on the recipient, said Arthur Eisenberg, legal director of the New York Civil Liberties Union.
Although FBI spokesman Bill Carter said the FBI cannot force compliance with the letters without seeking approval from a federal judge, Eisenberg said most NSL recipients are not aware of their legal options and do not challenge the records requests because of the gag provision.
“The problem, of course, is how do they know what they can or can’t do if the letter basically says they can’t talk to anyone about it?” Eisenberg said. “If there is legal recourse, it is only in theory, not in fact.”
National Security Letters have existed for several years, Carter said, though the Patriot Act has lowered the legal standard for issuance. Instead of showing that information has been requested on behalf of a foreign power, the agency must only demonstrate the existence of an ongoing investigation, he said.
But in the four years since the inception of the Patriot Act, there has not been a verified abuse of the NSL provision, Carter said.
“These are not fishing expeditions,” Carter said. “These are based on information that we have that we have reasonable suspicion that an individual is a terrorist or is engaged in intelligence activities that we would need records to help out with that information.”
The provisions allow the FBI to issue National Security Letters requesting individuals’ telephone, financial or consumer records. Although library records are not specifically mentioned, they are not excluded, National Library Association spokeswoman Bernadette Murphy said. The ACLU is representing the Connecticut plaintiff, a member of the NLA.
“We don’t believe that the Patriot Act gives the necessary protections that should be placed for something as sensitive as patron reading records,” Murphy said.
Robinson said the NLA members challenging the new federal guidelines are performing valuable work in raising awareness of legal provisions that could impact Yale and other institutions.
Yale’s policy is to protect library patrons’ privacy, according to the library’s “Confidentiality of Library Records” policy, which was revised in 2002. The University library Web site states that “under no circumstances may staff release the name of a reader to whom a book is charged, who is using a computer on library premises, or who has used any other library services.”