The dance between library privacy and the government’s desire or need to know is complicated during war, but passage of the Patriot Act in 2001 alarmed many librarians. Was the FBI now going to help itself to library records, with or without search warrants? No, no, Attorney General John Ashcroft declared, and Alberto Gonzales after him; no one wanted your library records, and no one’s civil liberties were going to be violated. Librarians who implied otherwise were simply being, as Ashcroft put it, “hysterical.”
Then, in 2005, George Christian and Library Connection, a consortium in Connecticut that furnished computer services to twenty-seven member libraries, received a national security letter from the FBI demanding information about who had used one of their computers on a particular day. It was a matter of national security, the letter said, but no judge had signed it—and Christian was warned never to reveal the letter’s contents, or even acknowledge having received it.
The letter hadn’t completely surprised him, George Christian recalled at our meeting. Someone from the FBI had called Library Connection’s telecommunications manager and asked to whom they should address a national security letter; they had been given Christian’s name. Tipped off, Christian first thought, “I’d never heard those three words—‘national security letter’—together before in my life.”
Neither had his attorney, who did a quick survey and learned of a challenge then wending its way through the courts. It was initiated by (who else?) “John Doe,” this Doe an Internet service provider in New York who had refused to comply with his national security letter and was suing to have it declared unconstitutional. The judge had ruled that “on its face, the statute violates the First, the Fourth and the Fifth Amendments.” The government was appealing, but Christian was encouraged. “Not one amendment—three!” Obviously, he had a case. Section 215, the part of the Patriot Act that authorized the use of secret national security letters to gather books, records, papers, documents, and other items “in connection with” a terror investigation—without judicial review and oversight—had to be unconstitutional.
The FBI agents didn’t appear at Library Connection’s door immediately. When they did, the letter was months old and the information the FBI wanted dated back five months. Christian had no desire to aid and abet terrorists, but the agents didn’t seem to be in “hot pursuit. I didn’t think that I was putting anybody at risk if I stalled on this.” He told his attorney he didn’t want to comply with the letter. And she told him there was only one alternative: he would have to sue the attorney general.
Legally, Christian had the right as executive director of the consortium to file on his own, “but morally I didn’t feel I could commit the consortium to a contest like this. I could just see this going to the Supreme Court and the bills running up like crazy.” He decided to bring in the other members of the executive board, three library directors—Nocek, Chase, and Bailey—who had just been elected to their posts. Once they saw the letter, they, too, became subject to the gag.
From the start, there was no question they’d refuse to comply with the FBI. Retelling their story in Hartford that afternoon, they sounded like an echo chamber.
Nocek: “Oh, not going to do it.”
Bailey: “We’re not going to do it, no.”
Chase: “We’re not gonna do it, not without a court order.”
Nocek: “Not without a court order.”
Chase: “I couldn’t believe there was no court order. I said, ‘What do you mean there’s no court order?’ How can they ask?”
Nocek: “I remember shaking a little afterwards and saying, ‘Geez, we could be abetting terrorists.’ That came to mind. The basic thing—what we held on to—was, it just isn’t right to do this to innocent people.”
Chase: “People come to libraries and they tell us very confidential things all the time. ‘I’m sick. I have cancer. Where are the medical books? I’m thinking about a divorce. Where are the legal books?’ They trust us with that information, so we’re not going to sell them out. People want to read different opinions, different views. Maybe they’re reading Osama bin Laden because they want to find out what it’s all about. So spying on what they’re doing in the library, we always say, is like spying on the voting booth. This is where people can make up their minds about controversial issues. It has to be private.”
They were like a chorus, voices chiming in, then fading as one soloist, then another, stepped forward. I looked around the table at these middle-aged, unobtrusively dressed citizens, who fell effortlessly into the background until they opened their mouths and spoke. Who were they?
George Christian, mustached and tall, had a slight stoop even while seated, as if bending down to listen to his companions. Though he was the leader of the “Connecticut Librarians,” as they came to be called, he was not a librarian. Hired to manage Library Connection’s computer system and deal with its vendors (“because I wouldn’t succumb to the song and dance that vendors give”), he was a tech guy so attuned to the librarians that he ended up running the consortium.
Barbara Bailey would have been a Spanish teacher but for a glut in the market. She had bright blue eyes and short blond-gray hair she raked with her hands. She was the director of the Wells-Turner Memorial Library in Glastonbury; she called herself “a small-town librarian.”
Jan Nocek was very young when she “got hooked” working in libraries. Her first was in Salem, Massachusetts, home of the infamous witch hunts. “Of course,” she pointed out, “we’re naturally suspicious of accusations and judicial [overreach] there. Terrible things can come of that.” Another small-town librarian, she directs the Portland, Connecticut, library.
Peter Chase was once a history teacher. He spent a summer working on a bookmobile, then switched enthusiastically to library work. As director of the Plainville Public Library and chairman of the Intellectual Freedom Committee of Connecticut, he was outspoken about the dangers of the Patriot Act. Chase had publicly debated U.S. Attorney Kevin O’Connor, who ended up their adversary in court, on the subject. “O’Connor continued making forays throughout the state to promote the Patriot Act, and I would be asked to go to some of those events, too, but of course I couldn’t accept, nor could I explain why I wasn’t accepting,” he said. “It was galling for me to see him travel around, telling people that their library records were safe, while at the same time he was enforcing a gag order preventing me from telling people that their library records were not safe.”
But the hardest part for Chase and Christian, both fathers, was concealing their activities from their almost grown children. They wanted to explain that they were not doing something wrong—they were standing up for their principles, the Constitution of the United States, and every American who lives under its protection—but they couldn’t do that without risking jail.
The American Civil Liberties Union agreed to represent the plaintiffs, a tremendous relief. But after the ACLU filed suit in federal court in Bridgeport, Connecticut, to halt the search of their libraries’ computers and get a ruling on the constitutionality of national security letters, Christian and the three librarians’ cloak-and-dagger days as John Doe (Connecticut) began.
Christian: “The attorneys said, ‘We really don’t think you should use the phone that much, or e-mail.’ I thought that they were being a little dramatic. They collected the copies of the national security letter I had passed out and they said, ‘We think you ought to shred this. And if you’re going to keep notes, do you have a locked filing cabinet? Really, you can’t have this stuff lying on your desk. Somebody might see it.’”
Nocek: “It was ridiculous. I was called in for jury duty and they said, ‘Are you involved in a suit?’ They want to know what it is and I can’t tell them. I didn’t know what to do—I was under oath. I said I was involved, nothing else, and luckily wasn’t called.”
Christian: “I had to lie to our auditors. I’m the executive director and the one question the auditors asked me was, ‘Is Library Connecti
on involved in any serious legal matters?’ And I had to say no, although I was suing the attorney general of United States.”
Chase: “You can’t go to a secret meeting with the ACLU in New York City and say to your wife, ‘I’m sorry, I’m not going to Plainville, Connecticut; I’m going to New York City today.’”
Nocek: “Yeah, I’m running this library in a town of nine thousand—and I’m taking off for New York City every two weeks.”
Chase: “Of course, my wife saw it all in the paper. It was pretty easy to figure out. Suddenly I had gone to the city and then there’s a big headline the next day” (FBI, Using Patriot Act, Demands Library’s Records).
They were not permitted in the federal courthouse in Bridgeport where their case, Doe v. Gonzales, was filed; they watched the proceedings on a closed-circuit television from Hartford, sixty miles away. Bailey recalled: “We needed to pass through two levels of security and sit in a locked room with a security officer. We were plaintiffs, but we were treated like criminals.”
A host of other Connecticut librarians, alarmed by the implications of the act, had shown up in Bridgeport, but Chase, the chairman of the state’s Intellectual Freedom Committee, wasn’t among them, and his absence in particular was conspicuous. Librarians, skilled at ferreting out information, had figured out that John Doe (Connecticut) had to be associated with Library Connection; now others were figuring it out as well. The New York Times reporter covering the case left her card in Christian’s mailbox and called Chase at home. Chase told her nobody was talking about the case. The reporter wasn’t fooled. She said to him, “The person most not talking about it is John Doe himself.”
Chase had to report this conversation to the ACLU attorneys. They reacted with dead silence, then hung up for a hasty conference. “‘Peter, your situation has changed a little bit,’” Chase was told when they called back. “‘You’ve created a trace between your house and the New York Times, and if tomorrow’s story identifies you as John Doe, people might get the wrong idea if they pulled your phone records, which of course they can. And so we’ve hired for you a team of criminal defense attorneys.’
“Luckily that news article didn’t say my name, so the crisis was averted. But I think that really put the fear of God in me, how serious this could be. You had to be absolutely like a sphinx or you could be in trouble.”
The Connecticut Four were permitted to attend the next hearing in the Court of Appeals of the Second Circuit in Manhattan, “but we could not enter the building together,” Chase said. “We could not sit together. We could not speak to each other. We were not to look at each other.”
Nocek: “Or the attorneys!”
Chase: “Or our attorneys. And because they had combined our case with John Doe (New York), we knew that someplace in that courtroom was John Doe (New York), our bosom buddy. But of course, he was under the same orders that we were.”
Peter Chase was sitting next to the president of the Connecticut Library Association, who stood up and began ticking off the names of the other librarians who were pouring through the doors of the courthouse; in this way she hoped to signal to him how much support he had. When George Christian walked in, Chase recalls, “She said, ‘Oh, look Peter, there’s Geor—.’ Then she sat down. She was afraid to say his name. That’s what it was like…people were quite literally afraid to say our names.”
While the government’s appeal was being heard, debate over the renewal of the Patriot Act had begun. The head of the House Judiciary Committee stated, baldly: “Zero. That’s the number of substantiated USA Patriot Act civil-liberties violations. Extensive congressional oversight found no violations.” The attorney general released statistics showing that zero libraries or bookstores had been served with the national security letters. Meanwhile, the librarians who could contradict this claim were gagged.
The situation grew even more surreal when the New York Times noted that “even as the federal government was arguing in court that it needed to keep Library Connection’s name secret, it had carelessly left its name sprinkled throughout court records.” The Connecticut Four had been inadvertently outed by the government. The names of the Library Connection, George Christian, and Peter Chase were published in the New York Times, identified as plaintiffs.
Chase: “Our attorneys filed an emergency plea that said, ‘Look, their names have been in the paper. Certainly you can remove the gag now because it’s not too late for them to participate in the debate over the Patriot Act.’ And the government said no. One of the arguments in its legal draft was that not too many people in Connecticut read the New York Times—and people who read newspapers, they don’t believe what they read anyway. So really, the government concluded, their identity is still a secret.”
What the four insisted on calling the “gag order” was officially termed the “nondisclosure provision.” This rankled the librarians, too.
Nocek: “I could see a nondisclosure, where we wouldn’t give away something that would jeopardize the investigation. But for nobody to be able to say they ever received one of these things throughout their whole life…?”
Chase: “And to threaten you if you talk? That’s a gag. I mean, English is English. That’s how they lie with words. They pick the most innocuous-sounding terms.”
Nocek: “It’s absurd.”
Christian: “That’s why this is so 1984.”
Nocek: “I just found that totally reprehensible.”
Christian: “Redefining words. And the very idea of a Patriot Act—it’s not a Patriot Act, it’s an assault on the Constitution.”
The ACLU filed an emergency appeal to the Supreme Court, but Ruth Bader Ginsburg reviewed it and determined there was still plenty of time for the Appellate Court to make a decision; she wouldn’t step on their toes. But time did run out. The Patriot Act was reauthorized in March 2006, with only minor changes. The government’s assertion that not one national security letter had been issued to libraries went unchallenged.
Six weeks later, the attorney general’s office dropped the nondisclosure order. The librarians were no longer gagged, but there would be no ruling from the Appeals Court on the constitutionality of such gags, and of course, it was too late to influence the debate on the Patriot Act. Being permitted to speak out after Congress had voted to reauthorize the act was, as Christian put it, “like being allowed to call the fire department after the building has burned down.”
But once ungagged, the librarians had a few sharply worded things to say, and they said them to anyone who would listen: Do you know what the government is doing in the name of patriotism? It is asking for records that we assume are private; it is asking for them secretly; it is gagging librarians who try to defend that privacy; it is stifling public debate. And, by the way, is this the best use of our government agencies, in wartime and under threat of terrorism—sending out hundreds of thousands of secret national security letters, especially when any evidence obtained will be inadmissible in court?
So here was the case in a nutshell: quiet librarians who wanted to keep quiet about their patrons’ records were told to give up those records and to remain silent about it. The librarians fought to be heard, and finally they were. Now, for the rest of their lives, they would be noisy, in defense of keeping quiet.
A few weeks after the four were finally free to speak, the government claimed it had obtained the information it originally requested by other means. Kevin O’Connor spoke publicly about the case afterward. As Chase recalled, “People in the audience were saying, ‘Well, how come you didn’t get a court order?’ O’Connor said, ‘We couldn’t get an order because it wasn’t a criminal affair.’ He said it was a matter of domestic surveillance.”
Christian added: “He said someone had used a computer at one of our libraries to inform the FBI about an alleged terrorist plot, and they wanted to talk to this individual. If it is now FBI policy that, if they get an anonymous tip, they’ll move heaven and earth to find out who that person is, how many mo
re anonymous tips do you think they’ll get?”
USA Today later reported that the original tip had been a hoax.
“And of course, the whole thing was, we didn’t have the name in our possession anywhere,” Nocek said. Members of the Library Connection consortium don’t verify the names of patrons who use their computers, and they don’t keep the sign-up sheets for the computers for more than a few weeks. Also, they used a program that randomly assigned each machine a different Internet address every time it was turned on.
The FBI had asked them for information that didn’t exist.
The national security letter addressed to Library Connection is, so far, the only one to become public.
Nocek, Chase, and Bailey are still directing their public libraries, and Chase continues to serve on the board of the consortium; Christian remains Library Connection’s executive director. But much of their individual and collective time has been spent speaking out about privacy and government intrusion, or testifying, as Christian did, to the Senate Judiciary Committee; or as the former head of the American Library Association summed it up: “graciously agreeing to accept every speaking opportunity offered them, using each speech as a teachable moment and precious chance to inform [us]…about how far-reaching the powers granted in the Patriot Act are and how dangerous they are to the future of our democracy.”
Chase said, “As librarians, we’ve been mass producers of information and distributors of information for many, many hundreds of years. And we’ve had a long time to think about honing those arguments on privacy.” Their ACLU counsel, Ann Beeson, spoke of the case as a validation of their profession. “Congress won’t follow laws, the president won’t follow laws, the FBI won’t follow laws, but we still have our librarians,” she said.
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