The Rights of the People (36 page)

Muzzled by law, Christian and the others had to turn down speaking requests while the government was free to explain and defend its position. This especially rankled Peter Chase, because he was the chairman of the Connecticut Library Association’s Intellectual Freedom Committee.

“It was galling for me to see the government’s attorney in Connecticut, Kevin O’Connor, travel around the state 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,” Chase declared when he was finally free to talk. “On one occasion, we were both invited to speak at the same event in Hartford, sponsored by the Women’s League of Voters [
sic
].
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Mr. O’Connor accepted his invitation, but I had to refuse mine because of the gag order.”

It was on Capitol Hill in the winter of 2006 that the censorship acquired its rawest political purpose. As congressional hearings on extending the Patriot Act convened in early 2006, Christian and others were eager to testify, but they couldn’t as long as the Justice Department continued to defend the stay and pursue an appeal. The bizarre result—that people known publicly to have received an NSL couldn’t discuss it—suited no national security objective. A political goal was achieved, however: While misinformation circulated that libraries had been spared such searches,
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Congress might have been enlightened by librarians who had, in fact, been subjected to secret orders to produce records on readers and Internet users. “I very much wanted to focus public attention and the attention of Congress on my concerns,” Christian said. “As the recipient of a National Security Letter, I felt I had an important perspective to offer.”

The Justice Department evidently felt the same way. To spare lawmakers his “important perspective,” it waited until after Congress had renewed a slightly amended Patriot Act to decide that the nation would not be endangered by knowing Christian’s views on the NSL he had received. Only in April 2006, after President Bush had signed the extension into law, did the government drop its appeal on the gag order, thereby allowing the librarians to enter an expired debate. A month later the administration abandoned its pursuit of the information it had secretly sought to save the country from an episode of terrorism. “I can only conclude that the intent of the delay was to keep me from speaking to Congress while the renewal of the Patriot Act was being debated,” Christian declared.

Had the initial demand for information come in the form of a grand jury subpoena or a court order, Christian said later, he would have consulted a lawyer and then complied.

But neither would have been obtainable in a case of that kind, said U.S. Attorney O’Connor. “You cannot get a court order under these circumstances,” he conceded. “There’s no crime that has been committed yet. You need probable cause to believe a crime has been committed to go in to a federal judge. And you need a prosecutor. Now remember, a National Security Letter is issued by intelligence agents, not for the purpose of putting people in jail. Search warrants, court warrants are in the criminal system. That’s when the U.S. Attorney goes to a federal judge
and says, ‘I believe there’s probable cause. I want to search this library.’ ” Since September 11, 2001, “the public doesn’t expect us to ignore anything,” O’Connor added. “It’s an incredibly burdensome task.”

It was true. Officials now stood to be criticized more vigorously for failing to protect Americans’ security than for failing to protect their civil liberties. Consequently, FBI agents—striving to prevent attacks rather than prosecute them afterward—worked under standing orders from their director, Robert S. Mueller III, to check out every single tip. “We’ve said no lead goes uncovered,” explained Michael Rolince when he was special agent-in-charge of the Washington, D.C., field office. He had previously been head of counterterrorism. “It’s an incredible, at times, waste of manpower. Yet you don’t have the option. So you’ve taken the discretion away from the manager, the supervisor.” That didn’t seem very sensible, I said, and he replied: “There would be a lot of people in the FBI who would agree with you, and I would be one of them.”

Yet that was the practice that governed the issuance of the National Security Letter to Library Connection. Of the thousands of tips that pour in, said O’Connor the prosecutor, “I’ll be honest with you, ninety-nine percent of them are hoaxes. I don’t necessarily know if they’re intentional or mentally ill people. But people write us every day and send us messages saying this is going to happen, this is going to happen. In the old days, pre-9/11, I think we ignored most of them and just rightfully assumed that these people were mentally unstable. We can’t do that anymore. The public expects us to run these down.” An alternative—a grand jury subpoena—cannot be justified unless a crime is being investigated. “But the reality is I’m not trying to investigate a crime,” he said. “So if we do not use an NSL under that situation, you do not get the information. That’s the simple fact.”

Not getting the information in such a nebulous circumstance as a vague, anonymous tip might seem exactly right to someone concerned with walling off government from libraries and other zones of personal freedom. Indeed, if the tipster had wanted the FBI to know her identity, she would presumably have put it in the e-mail. And if people realize that anonymous alerts will be tracked back to them, tips are likely to dry up. But officials trying to head off terrorist attacks see the world through a different lens. A lead landing on a desk or popping up on a computer screen becomes a puzzle to be solved, sometimes urgently.

“The purpose of this [National Security] Letter is to allow intelligence people to quickly ascertain whether or not there is a threat,” O’Connor explained. “And they have to prioritize, and it may take them a month
because the nature of the communication may not be an imminent one, but they can’t ignore it, either. So they eventually get around to having to address it, and then the question is, how do we figure out if this is a hoax or not? How do we do that? The only way you do that is to find out as much as you can about who sent it. If it’s somebody you have reason to believe is capable or may have knowledge of something, then obviously that gets front-burnered. If it’s somebody who has a history of mental illness and writes to the federal government, the president, the mayor every day with conspiracy theories, then obviously you can de-prioritize that. And that’s the reality we’re in.

“Look, if we could get court orders for some of these things, we would. We simply cannot. So the choice is not get a court order or use an NSL. The choice is use an NSL or don’t pursue the lead at all. And by the way, that’s not my decision. That’s for Congress.” As a solution, Congress could revise the statutes to make NSLs more difficult to issue, in part by requiring judicial oversight. But the Obama administration has moved in the opposite direction, to ease the use of NSLs to acquire people’s Web-browsing histories.

Getting judges involved would not please federal investigators, who already chafe at bureaucratic obstacles. Even now, “an NSL is not something you can whip off in an afternoon,” O’Connor remarked, because it calls for three levels of FBI approval. “I guarantee you if there were a case where an NSL were not issued and God forbid an act happened, the first thing you would hear is, ‘Why is the FBI so incompetent? It can’t get one of these things out without three layers of review?’ ”
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The public doesn’t have to depend on the government to protect private information. Librarians have learned what Mike German, a former undercover FBI agent, has understood for a long time: The best way to avoid turning files over to law enforcement is to retain no files. “I’m just as upset at the library’s keeping the records as at the government’s keeping the records,” German remarked a month before Christian was served with the NSL. The same could be said about phone companies, Internet providers, and a host of other private entities whose records are exposed to government snooping.

“If you keep it, they will come,” said Alan Davidson, senior policy counsel for Google. “Just like in
Field of Dreams:
If you build it, they will come.” If it’s available, investigators and intelligence agents will want to
look at it. So Google, which used to keep all records indefinitely to help evaluate and improve its mammoth search engine, imposed an eighteen-month limit, then shortened it to nine months and may go lower on files linking computer IP addresses to Web-page searches on the Internet.
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The company has debated internally how to weigh the preservation of privacy—from government, commercial, and criminal intruders—against the business’s needs to polish its performance. Destroying records has become a competitive feature of Internet service providers, which jockey for customers who want retention to be as brief as possible.

Librarians have had similar discussions. If a loaned book is not returned, the library wants the name of the borrower to track her down. But once the book is back, there’s no need to know who she is. So after the NSL was served, those in the Connecticut consortium stopped keeping files on who borrowed what books and who used which computers. Some libraries had previously maintained paper lists, others had retained the information electronically. Some had kept computer records for a day and erased them every evening, others for two weeks, some forever. Now, Christian reported, “Everyone’s decided not to keep records. In terms of sign-up sheets [for computers], libraries have stopped.”

Purging book-lending files is more complicated, because librarians watch circulation patterns to know what books to order and to keep on shelves. “Many of these systems were never designed to prevent against intrusion, because nobody ever imagined that the government could be looking,” Christian observed. “Now people developing software are scrambling to keep records but erase the linkage between the volume and the patron” so that once books are returned, libraries can see only what books are borrowed, not who borrows them.

Concealing patrons’ reading and Internet habits was raised to a policy objective by the American Library Association, which enacted a resolution in June 2006 urging members to “limit the degree to which personally identifiable information is collected, monitored, disclosed, and distributed; and avoid creating unnecessary records; and … dispose of library usage records containing personally identifiable information unless they are needed for the efficient and lawful operation of the library.” The association also called on libraries to resist any subpoenas until “good cause” had been shown in court, which implied that National Security Letters—which do not require court approval—would be automatically challenged.
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The trouble is, the government can push back and enact legal requirements for record keeping. There is a precedent of sorts, in the form of the
1994 Communications Assistance for Law Enforcement Act (CALEA), requiring telecommunications carriers to make their systems wiretap-friendly for government agencies. Part of the statute reads:

This law, designed to keep pace with the transition from copper-wire to digital technology, was passed by a Democratic Congress and signed by a Democratic president, once again demonstrating the bipartisan tilt toward policing powers over individual rights. It was written largely by Jim Dempsey, then assistant counsel to the House subcommittee dealing with wiretap legislation, now policy director for the Center for Democracy and Technology, which defends the Internet’s openness and advocates restraints on government’s technological intrusions into privacy.

Thanks to the advancement of the computer systems that handle communications, Dempsey noted, the statute gives law enforcement access to a wealth of information that was previously inaccessible: for example, the destination of a call-forwarding order, the translation of a one-digit speed-dialing command into a seven-digit number, perpetually unblocked caller ID so that every incoming number is instantly visible, the tower location used by every cell phone, the identification of every party who joins and leaves a conference call.

Dempsey opposed the bill’s concept, “but at a certain point it was made clear to me that President Clinton would support the FBI’s request for this kind of legislative mandate.” And since a number of Democratic senators favored it as well, “it was going to happen.” So he built in checks and balances, assigning regulatory authority not to the Justice Department, as the FBI wanted, but to the Federal Communications Commission. “I said a law enforcement agency should not be regulating the telephone industry,” he recalled. “The FCC is the regulating authority and should be considering privacy. Everything I wanted to see get into
it got into it. My ideas just weren’t good enough.” Far from defending the public’s privacy, the FCC rolled over for the FBI, and in 2005 even extended the law’s application to broadband e-mail and voice Internet providers, which had not been explicitly covered in the legislation. The expansion was challenged but was upheld by the U.S. Court of Appeals for the D.C. Circuit.
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An additional expansion, proposed by the Obama Justice Department, is aimed at empowering government to intervene in the very design of Internet technology, whose lightning advances have impaired companies’ ability to comply with surveillance warrants, sometimes for weeks or months. CALEA might be revised to require FBI or FCC approval before services were updated or launched.