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The recent disclosure that the FBI had subpoenaed records from a rural Washington state library—because a patron had written in the margins of a book about Osama bin Laden—has rekindled the fears of librarians nationwide about their patrons’ privacy. In August, two months after the Whatcom County Library System’s attorney moved to quash the subpoena on privacy and other grounds, the government backed down. But the U.S. Department of Justice had requested that the library not disclose the existence of the subpoena. It came to light recently when Joan Airoldi, director of the library system, and the library’s attorney, Deborra Garrett of Bellingham, Wash.’s Zender Thurston, decided to go public at a local independent book store function. The subpoena was issued as part of a grand jury investigation into unspecified criminal activities. It ordered the library to disclose who took out Bin Laden: The Man Who Declared War on America from Nov. 15, 2001, onward. Authored by Yossef Bodansky, the book is an account of the rise of terrorism. The patron had written: “If things that I’m doing is considered a crime, then let history be witness that I am a criminal.” Citing the secrecy of grand jury proceedings, a spokeswoman for the U.S. attorney’s office in Seattle declined to comment about the specifics of why the subpoena was issued and why it was withdrawn. Garrett believes the government withdrew the subpoena because it could not demonstrate a need for the records that outweighed library patrons’ privacy rights. Bigger battle brewing? Though that skirmish is over, it could embolden both sides of the debate over whether to renew a USA Patriot Act provision that allows the government secretly to obtain library and other business records without a subpoena, and that forbids disclosure of a demand for records. Known as “215 orders,” they are issued by a Foreign Intelligence Surveillance Act (FISA) judge who sits in a secret court. The orders don’t require the Justice Department to show probable cause or reasonable suspicion, merely that the records sought are related to an ongoing terrorism investigation. DOJ spokesman Mark Corall asserted that “By law, it’s classified,” whether or not 215 orders have gone to libraries or any third-party record keepers. But the American Civil Liberties Union (ACLU) believes a rule 215 order was executed at least once. Through discovery in a lawsuit, the ACLU obtained a memorandum dated Oct. 15, 2003, which speaks to a specific application to the FISA court. Muslim Community Association of Ann Arbor v. Ashcroft, No. 03-72913 (E.D. Mich.). The suit challenges the 215 provision of the act for failing to provide recipients of orders with an opportunity to challenge their validity and for imposing a permanent gag on recipients. Due to the 215 secrecy requirements, no one at the Chicago-based American Library Association knew how many, if any, of its member libraries have been ordered to turn over records of their patrons’ reading habits. The difference between a grand jury subpoena and a 215 order is huge. “You can try to quash or modify a grand jury subpoena and there’s no secrecy requirement for the recipient,” said Patrice McDermott, assistant director for government relations in the library association’s Washington office. “They have to name a specific person or item-they can’t go on a fishing expedition as with a FISA court order, which has no delimiters, no place to go to quash or modify it.” Post’s e-mail address is [email protected].

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