ARL Joins Amicus Brief in Surveillance Case, Wikimedia v. NSA

On September 3, 2015, ARL joined an amicus brief with other library associations and bookseller associations in Wikimedia v. NSA, a case that challenges warrantless surveillance.  The amicus brief, authored by the Electronic Frontier Foundation, was also signed on to by the American Booksellers Association, the American Library Association, the Freedom to Read Foundation, and the International Federation of Library Associations and Institutions.

The brief explains that the First Amendment is a broad guarantee that includes the ability to distribute and receive information, and to freely and privately associate.  Libraries have long advocated for and protected patron privacy, and the brief points out the importance of patron confidentiality including in the digital age.

The brief points out that protecting reader privacy is critical:

Providers of books and reading material such as libraries and booksellers are often uniquely positioned to assert readers’ First Amendment rights. Readers change or curtail their reading if they fear government scrutiny of their behavior, especially where the intrusion concerns reading material that is personally embarrassing, politically controversial, or otherwise revealing.

[…]

The resulting inhibition of expressive activity is not hypothetical: patrons care deeply about their intellectual privacy and avoid situations where they cannot preserve it. In Subpoena to Kramerbooks, the D.C. district court found that as a result of a grand jury subpoena for a patron’s book purchases, “[m]any customers have informed Kramerbooks personnel that they will no longer shop at the bookstore because they believed Kramerbooks to have turned documents over . . . that reveal a patron’s choice of books.” 26 Media L. Rep. (BNA) at 1601. Similarly, when the owner of the Tattered Cover bookstore challenged a search warrant for a customer’s purchase history, she testified she received an “‘enormous amount of feedback’ from customers about this case, including over one hundred letters from customers in support of the Tattered Cover’s position.” Tattered Cover, 44 P. 3d at 1050.

Additionally, the brief notes the rise in digital communications and interactions.  It emphasizes that the First Amendment rights apply in the digital world:

Just as libraries and booksellers have standing to challenge law enforcement access to patron records in the physical world so, too, do they have standing to challenge unwarranted access to digital records. Just as government intrusion on the freedom of inquiry causes First Amendment injury in the physical world so, too, does government surveillance cause injury in the digital world . . . By sweeping in and searching vast amounts of Internet traffic, upstream surveillance encroaches on the sensitive interactions between libraries and booksellers and their patrons—interactions that, as shown above, these entities have historically taken great pains to protect.

The full brief can be accessed here.

 

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