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Carnival of the Law Bloggers

A Library Miranda Warning?

Most of the FBI agents I have come to know over the years seem to be decent, hardworking folks. They generally play by the rules, try to do the right thing, and worry bundles about the rule of law. They remind me of ants, forever churning away in secretive tunnels building, building, building. I sometimes wonder if they have any idea what they are doing, or why.

A recent report in The Washington Post tells just how busy the feds have been in this great ant farm we call the United States. Last year, federal agents issued more than 30,000 national security letters to targets. These letters scare the bejesus out of recipients, warning them not to tell a soul about the investigation. The government then sweeps in to review phone records, emails, financial data and, look out world, who is reading what. The results of these sweeps get fed into a giant database.

All this is done simply on the say so of an FBI special agent. (Practice pointer for the neophyte: There are no regular agents in the FBI. They are all special agents. I've wondered sometimes aloud in a courtroom whether really good agents get the designation oh-so special, as in "I am Oh-So Special Agent Murphy of the FBI.")

No judge authorizes the request for information. No prosecutor even reviews the request. No grand jury asks for it. We are told simply to bend and to spread because a G-man in heat wants to poke and prowl. What became of the Fourth Amendment?

Under the Patriot Act the use of these security letters has exploded. Sen. Joseph Biden, D-Del., of the Senate Judiciary Committee, wonders whether the use of these letters is being abused. So does Sen. Chuck Hagel, R-Neb., another member of the committee. How about a hearing, fellas?

Just how chilling these letters can become is illustrated by a case now pending before the United States Court of Appeals for the Second Circuit. In that case, a certain John Doe, now identified as George Chiristian, received a national security letter from the feds. He runs something called the Library Connection, a cooperative autmotaed library system used by 26 libraries. His letter warned him not to tell anyone he had received the letter. He was afraid, therefore, to call a lawyer. In the end, he overcame that fear and consulted the American Civil Liberties Union, which filed suit challenging this use of the Patriot Act.

United States District Court Judge Janet Hall ruled that the gag order violates the First Amendment. The Second Circuit has heard argument, and is expected to uphold the District Court. Expect the loser to take cert.

I've never seen one of these national security letters. The notion that I would be sworn to secrecy on the say-so of an FBI agent acting without judicial oversight is troubling. Are we really going to need a Supreme Court ruling to determine whether we should be giving something akin to Miranda warnings to folks brave enough to check a book out from a library, or to use a database?

"You have the right to enter this library and to use its contents, but understand that by doing so, you are waiving your right to privacy, and your right to consult with an attorney should the government decide your taste in reading is relevant to the national security."

Arghhhh. National Security Fever