Ginsburg releases library case file
on Aug 2, 2006 at 7:17 pm
UPDATE Thursday a.m. Justice Ginsburg’s Oct. 7 in-chambers opinion in this case had been redacted to remove material that was then under seal. The Court has now released an unredacted version of her opinion. The nature of the deletions provides a clear illustration of how closely federal prosecutors were monitoring what could be revealed publicly about this mostly-secret case.
The redacted version of the Ginsburg opinion had said the following, in two parts of its text:
“Shortly after the Court of Appeals entered the stay, the parties learned that ***** [REDACTED] *****. The parties also learned that ***** [REDACTED] *****.”
“Doe — the only entity in a position to impart a first-hand account of its experience — remains barred from revealing its identity, while others ***** [REDACTED] ***** may speak freely on that subject.”
Those portions of the opinion now read (bold italicization had been added here to show what had been deleted previously):
“Shortly after the Court of Appeals entered the stay, the parties learned that, through inadvertence, Doe’s identity had been publicly available for several days on the District Court’s Web site and on PACER, the electronic docket system run by the Administrative Office of the United States Courts. Id., App. F., at 3-5 (decl. of Melissa Goodman). The parties also learned that the media had correctly reported Doe’s identity on at least one occasion. See., e.g., Cowan, Librarians Must Stay Silent in Patriot Act Suit, Court Says, N.Y. Times, Sept. 21, 2005, at B2. ”
“Doe — the only entity in a position to impart a first-hand account of its experience — remains barred from revealing its identity, while others who obtained knowledge of Doe’s idenity — when that cat was inadvertently let out of the bag — may speak freely on that subject.”
The full text of the unredacted order can be found here.
A celebrated “war on terrorism” case that proceeded under a heavy veil of secrecy, but collapsed recently when the FBI gave up its demands to see the records of library patrons in Connecticut who used the Internet, came to an end Wednesday evening in an order by Supreme Court Justice Ruth Bader Ginsburg. She granted a request by “John Doe, et al.,” to unseal a series of court documents that had been cloaked for months. The John Does are four librarians, who have been allowed to identify themselves in recent months.
Acting on John Doe, et al., v. Gonzales, et al. (application 05-A-295), and with the Justice Department registering no objection, Ginsburg ordered the public release of documents that had been on file but not publicly available in the Supreme Court, the Second Circuit Court, and in a U.S. District Court in Connecticut. The request to unseal expressly did not ask for public release of classified information in the case.
The case began about a year ago when the FBI, in a secret demand to a group later identified as the Library Collection, a consortium of 26 Connecticut libraries, to see patrons’ electronic records. The FBI was using what is called a “National Security Letter,” authorized by the Patriot Act passed after the 9/11 attacks, to find out what readers had been viewing or reading online, supposedly as part of a terrorism investigation. Such a Letter does not require a court’s approval, and the party handed such a letter cannot acknowledge publicly that it received it, or even identify itself. In the Connecticut case, it was later revealed, the FBI was interested in who had used a single computer, believing a terrorist threat had originated on that device.
The “gag order” was ruled unconstitutional by a District judge in Bridgeport, Conn., Janet C. Hall, in a lawsuit filed by the American Civil Liberties Union, but the case and a companion lawsuit challenging the NSL authority itself moved up in the courts, to the Second Circuit Court and, on the gag order issue, to Ginsburg. Last October, Ginsburg refused to lift the veil of secrecy on the filings in the case. Even Ginsburg’s opinion had several phrases censored out.
In April, federal prosecutors decided not to continue their demand that the gag order remain in place and that files under seal be kept there. A few weeks later, the FBI also dropped its demand for the library records at issue, and the indiidual librarians publidly revealed their identities for the first time. Thbe librarians were never forced to comply with the demand for their patrons’ electronic records, and those records were never turned over to the government.
In July, the “John Does” asked Ginsburg to unseal the court files. She did so in a brief order, without explanation.
