We were skeptical about a revision incorporated into the Patriot Act when it was reauthorized earlier this year. But a decision to allow a library group in Connecticut to let others know that it had been served what is called a national security letter (NSL) demanding information that might be useful in a counterterrorism investigation suggests the possibility of a welcome change.
One of the many objectionable features of the Patriot Act, passed quickly after the 9/11 attacks, was that it prohibited businesses and other institutions from letting anybody know they had received a secret demand for information (let alone what the information was). Among the compromises that allowed reauthorization of the controversial act was a provision giving the government discretion as to whether to require that the existence of the NSL demand be kept secret and to allow affected institutions to petition for permission to make the situation known after a year.
This seemed like a weak protection against unreasonable government secrecy. But early last week the federal government dropped a lawsuit against the Library Connection of Windsor, Conn., a cooperative of 26 libraries that share an automated system. The Library Connection had sought to have the prohibition against disclosure lifted, arguing that the ban in the Patriot Act violated the group’s First Amendment rights. A U.S. district judge agreed, but the government had appealed. Now that the government has dropped its appeal, the group is free to disclose the fact that it was a target of an NSL.
The government says the new version of the Patriot Act allows it to permit disclosure, and there was little point in maintaining the gag order. (The fact that the government itself mistakenly disclosed the group’s name in a court filing probably had something to do with its decision.)
Kevin O’Connor, U.S. Attorney in Connecticut, says the government will now review past recipients of national security letters (about 30,000 a year are issued) to see whether their gag orders can be lifted. In the future it will decide on a case-by-case basis whether future recipients will be subject to a gag order.
We’re still skeptical about a government that seems obsessed with secrecy whether it’s important or not. But this decision is a hopeful sign.