Interview with Barbara Bailey:

November/December 2007

Patriot Act Primer for School Librarians

Barbara Bailey and Gayle Bogel

"The Library Connection, a consortium of 26 Connecticut libraries, asked for help from the ACLU when the FBI demanded patron records through a National Security Letter in the summer of 2005. This controversial Patriot Act tool allows the government to demand, without court approval, records of people who are not suspected of any wrongdoing. Anyone who receives such a demand is gagged from disclosing the mere existence of the request." - ACLU 

Barbara, as I reread the description of the early developments in Doe vs. Gonzales, I was struck by the stark bravery of the decision. Would you be willing to describe the discussions that you and the other Does had with each other, and what made it possible to reach agreement?

From the beginning we, as librarians, took to heart the ALA Library Bill of Rights and the Code of Ethics for Librarians and were determined not to release the requested information unless a proper, court approved warrant/subpoena was presented. The more we learned about National Security Letters (NSL), the more infuriated we became with the whole concept of our government spying on citizens like you and me who may have done nothing wrong.

The Executive Committee (Barbara Bailey, President; Peter Chase, Vice-President; and Janet Nocek, Secretary) met with Library Connection, Inc. (LCI) Executive Director, George Christian and LCI’s attorney. The attorney reviewed what a NSL was and told us about a case (we refer to as John Doe New York) that was working its way through the New York court system, challenging the constitutionality of the NSL provision in the Patriot Act. The nondisclosure statement, or gag order, that accompanies the NSL, the attorney felt, violated our First Amendment rights and the only way to challenge it would be to sue the Attorney General of the United States. She referred us to the American Civil Liberties Union (ACLU).

We met with the attorney from the ACLU. During this time Congress was reviewing the reauthorization of the Patriot Act and the ACLU was going to challenge the gag order in the NSL as being unconstitutional so that we could be released from it and be able to tell Congress our story. You might remember that it was being said that the Patriot Act was not being used against libraries when we had first hand information that it was. At the end of this meeting, we unanimously agreed that we would challenge the constitutionality of the gag order.

Professionally, we never had any doubts that we were doing the right thing by maintaining the confidentiality of our patrons. After all, the NSL served on Library Connection was dated May 13, 2005, delivered in mid-July, 2005 requesting information from an IP address on February 15, 2005, 4-4:45 p.m. --- with that time frame how serious could the crime be? Given the wonders of technology, it was and is highly unlikely that we would be able to supply the information without putting the entire patron database for the particular member library at risk. Finally, knowing that there was already a case challenging the NSL provision of the Patriot Act, I know made me feel a lot more comfortable that we were doing the right thing.

Personally, I’m sure that individually we may have had our doubts from time to time. Challenging the federal government is not something to be taken lightly. Being under a gag puts a lot of stress on one's personal as well as professional lives. The meetings that we had with the attorneys from the ACLU were held at the ACLU Office in New York City. It involved time away from our jobs. It’s not easy to tell a loved one, "Oh, by the way, I will not be at work today; I have to go to NYC." It's also not easy to "turn the other cheek;" when the Patriot Act was discussed among colleagues.

After one of the early trips to New York, we joked that the case would probably not be resolved in our working lives and if it was, we probably would have forgotten all about it! Needless to say, we were surprised when it was fast-tracked and heard in the U.S. District Court in Bridgeport on August 31, 2005. We attended via one-way closed circuit TV in the Federal Building in Hartford, completed with a security guard in the room. Because of the gag, it was feared that our attendance would give us away. I began to feel like I was a criminal! Judge Janet Hall ruled in our favor, however, stayed her opinion and the government appealed. It was at this time that we learned that George and Peter’s names and Library Connection had not been redacted in the court papers. The savvy investigative reporter and did pick up on this mistake. Life was not easy for George & Peter—they were actively pursued by the media.

On November 2, 2005, our case was combined with John Doe New York and heard in an appeals court in Manhattan. This time we were allowed to attend the hearing under these conditions: we had to enter the court room separately, could not sit with one another, could not speak or make eye contact with our attorneys and at the end of the hearing, we had to leave separately. Of course the court room was filled and several Connecticut librarians attended.

Having been lifted from the gag, one then begins to wonder, will I still have a job? Will I be listed on the “No Fly” list? What will my patrons think, will they be supportive? How will I respond if they are not? While we were confident that that we had support of the Library Connection members, what would have happened had we not? My experience under the gag can best be described as being on an emotional roller coaster.

Your statement on the ACLU site mentions the awareness that the Patriot Act affects real lives. As a curriculum unit, this case provides a powerful connection for students-each of them is connected to library records throughout their school careers. What perspective would you suggest to librarians and teachers in presenting this case and its implications for school libraries?

Two things come to mind:

• Children and youth have the same right to privacy that adults do. It is never too early to begin teaching children that they that they have the right to read and/or search the Internet for information free from scrutiny regardless of their age.
• For older children, I suggest providing a general overview of the Patriot Act.—I don’t think many people of all ages are aware of it and how it can impact their lives. During our ordeal I kept thinking about the checks and balances in our Constitution that I had learned about in 8 th grade U.S. History and how they were blatantly lacking at this point in time.

How do you respond to those who feel that " if w e are doing nothing wrong, why would we care who sees our library records ?"

I don't believe anyone in the country wants another terrorist attack, nor do I believe we, as a country want or should sacrifice the freedoms granted to us by our Constitution and Bill of Rights in the name of terrorism. Librarians have a responsibility to cooperate with law enforecement agencies (local, state or federal) and provide patron information only when these agencies present a proper warrant. I recommend not turning over the info immediately but consult with legal consul before doing so. I understand that a warrant is easy to obtain from a judge with adequate evidence in hand. We need to keep the checks and balances provided by the Constitution in place.

Confidentiality and privacy are the heart and soul of librarianship. The Library Bill of Rights and the Librarian's Code of Ethics reference it. Forty-eight of the fifty states have Confidentiality of Library Records laws. The two that don't (Ohio & Hawaii) have mechanisms in place for protecting patron records, primarily in public libraries. To quote Benjamin Franklin: "Those who give up essential Liberty to purchase a little temporary safety deserve neither Liberty or Safety."

What reactions have you had from students, either formally or informally?? From school librarians?? Have you been surprised by any comments?

The support from people from all walks of life has been overwhelming. The day after our identities were revealed, I received flowers at the Library from an anonymous admirer. I know that my colleagues in the local school system were very supportive. I did receive a call from a student who had not heard of the Patriot Act until this case broke and decided to do his term paper on it (Patriot Act). He did a telephone interview with me and at the time I was still under the gag order so could only speak to him in generalities, but thought, "Wouldn't he really like to know my true thoughts"

 Do you have a link or resource to recommend to school librarians who are planning curriculum units?

• The ACLU web site provides an excellent overview of the case. 
• I refer librarians to ALA's official Web page for the official professional view and for those who are writing a privacy statement, policies, procedures, etc for their libraries.
• Rights Matter is a curriculum for teaching the Bill or Rights to students in the classroom. While it was written in Massachusetts and uses Massachusetts legal examples, it could be adapted to Connecticut or other states.