Vermont Gives Nation a First Amendment Christmas Present

By Chris Finan, ABFFE president

With only five shopping days remaining before Christmas, Vermont bookseller Linda Ramsdell took a day off. It was not a mental health day. In fact, she longed to stay in her store selling books.

But she got in her car and drove to Burlington to participate in a press conference that had been arranged by Vermont Congressman Bernie Sanders. With Ramsdell and representatives of Vermont librarians standing at his side, Sanders announced that he will introduce legislation this month to repeal the provision of the USA Patriot Act that gives the FBI vastly expanded authority to search bookstore and library records.

"This is a crashing, crushing attack on basic rights in this country, and it's got to be opposed," Sanders declared. "I will do everything in my power in the Congress, working in a nonpartisan way with other concerned members, to strip this very dangerous language from the bill."

Ramsdell, who is president of the New England Booksellers Association, spoke for booksellers. "We believe it is our right to sell any book to our customers, who have the right to read any book," she said. "We will zealously guard the privacy of this transaction."

Ramsdell did more than speak at the news conference. There wouldn't have been a news conference at all if she and a couple of librarians had not decided to write a joint letter to members of the Vermont congressional delegation urging them to address the threat to bookstore and library privacy created by the Patriot Act. Sanders' decision to introduce legislation came in response to the letter.

Sanders' announcement is one of the best Christmas presents that booksellers and librarians could have received.

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The American Booksellers Foundation for Free Expression (ABFFE) and other free expression groups are deeply concerned about Section 215 of the Patriot Act, which authorizes the FBI to secretly obtain a court order for bookstore and library records from a special "spy" court created by a 1978 law, the Foreign Intelligence Surveillance Act (FISA). Section 215 allows the FBI to search any records it believes may contain information relevant to a foreign intelligence investigation, including records of people who are not suspected of any crime, much less terrorism. It also gags booksellers and librarians, forbidding them to reveal the fact that they have received a court order. (ABFFE sent a letter to all members of ABA on November 1, 2001, suggesting how they should respond if they receive a FISA order. To see the letter, click here [1].)

ABFFE has now joined with the Freedom to Read Foundation and the ACLU in suing the Justice Department under the Freedom of Information Act (FOIA) to force it to reveal how many FISA orders have been issued to bookstores and libraries. We expect the government to claim an exemption from the act on the grounds that keeping the information secret is vital for national security, even though we are only seeking the number, not the details, of these orders.

The Justice Department did reveal some new information in late December, when it finally replied to questions that had been asked last summer by Senators Russell Feingold of Wisconsin and Patrick Leahy of Vermont. In letters to Feingold and Leahy, Assistant Attorney General Daniel J. Bryant confirmed publicly for the first time that FBI agents have made inquiries at libraries following the September 11 attacks. "For example, various offices followed up on leads concerning e-mail and Internet use information about specific hijackers from computers in public libraries," he said. These requests did not involve the Patriot Act. They were made "on a voluntary basis and under traditional law enforcement authorities," Bryant added. However, he refused to confirm or deny that FISA orders have been served on booksellers or librarians.

Obviously, Bryant's letters have done nothing to calm our concern. On the contrary, at one point in his letter to Leahy, Bryant gives an alarming statement of the Justice Department's view of bookstore and library confidentiality. "Any right of privacy possessed by library and bookstore patrons in such information is necessarily and inherently limited since, by the nature of these transactions, the patron is reposing that information in the library or bookstore and assumes the risk that the entity may disclose it to another," Bryant said.

In other words, the Justice Department does not believe that its inquiries carry any threat of a chilling effect because bookstore customers and library patrons do not have any expectation that their privacy will be protected! This is clearly wrong, as Kenneth Starr discovered when he tried to subpoena Monica Lewinsky's book purchase records, spurring national outrage. It also ignores the history of the FBI's "library awareness" program in the 1980s when inquiries about the reading habits of possible spies led almost every state legislature to enact statutes protecting the confidentiality of library records.

Increasingly, courts are recognizing that protecting the privacy of bookstore and library records is essential to preserving the First Amendment right to buy whatever books we want. When Kramerbooks sued Starr in 1998, the judge agreed that the Independent Counsel's subpoena could have a chilling effect on free speech. A federal judge in Missouri suppressed a subpoena to Borders on First Amendment grounds in 2000. The Tattered Cover's victory last year in a unanimous decision by the Colorado Supreme Court sent the same message.

The Justice Department's dismissive view of bookstore and library privacy makes the introduction of the Sanders' bill all the more important. It will give booksellers and librarians a vehicle for expressing our concerns. Hopefully, we will also be able to enlist bookstore customers and library patrons, creating a public campaign to amend the Patriot Act. ABFFE is participating in a new working group that includes the Freedom to Read Foundation, the Association of American Publishers, and PEN American Center to see how this might be done.

In the meantime, booksellers and librarians from around the country can help by communicating with Congressman Sanders. It is not an easy thing for an elected official to oppose something called the Patriot Act.

Please join ABFFE in expressing your appreciation for Sanders' political courage:

Hon. Bernie Sanders
U.S. House of Representatives
2233 Rayburn House Office Building
Washington, DC 20515
Phone (202) 225-4115; Fax (202) 225-6790
bernie@mail.house.gov [2]