The American Booksellers for Free Expression (ABFE) has joined the American Library Association (ALA) and other library groups in urging a federal court to limit the National Security Agency’s (NSA) surveillance of international electronic communications, including those relating to the purchase and use of books. On September 3, ABFE and ALA filed an amicus brief in support of an ACLU lawsuit challenging Upstream, a once-secret program that was revealed by NSA whistleblower Edward J. Snowden.
“Booksellers and librarians have been strong defenders of reader privacy. We have a strong interest in ensuring that the protections that exist in the physical world apply to digital book records,” said ABFE Director Chris Finan.
The ACLU lawsuit, which was filed in March, is a second attempt by the group to curb NSA surveillance that it claims violates the privacy rights of millions of Americans and infringes upon freedoms guaranteed by the First and Fourth Amendments. The Electronic Frontier Foundation (EFF) filed a similar challenge, Jewel v. NSA, on behalf of AT&T customers in 2008, and the case is currently on appeal.
The ACLU’s previous lawsuit, Clapper v. Amnesty International, was filed in 2008 after Congress authorized the NSA to wiretap communications between the U.S. and other countries without a search warrant. The plaintiffs in the case — attorneys and human rights, labor, legal, and media organizations — argued that the NSA spying threatened their ability to work confidentially with clients and news sources.
In a 5–4 decision in 2013, the Supreme Court dismissed the case on the grounds that the plaintiffs had been unable to demonstrate that they had been the target of surveillance and therefore lacked “standing” to sue. Snowden has said that this ruling contributed to his decision to expose certain aspects of the NSA’s surveillance activity, including Upstream, a few months later.
Upstream involves the collection of virtually all digital communications, including e-mails, instant messages, web pages, voice calls, and video chats, that are transmitted by U.S. telecommunication companies between the U.S. and other countries. The NSA copies and combs through vast amounts of Internet traffic, searching for communications that contain certain sets of data, including e-mail addresses and telephone numbers, associated with people it is investigating. It is searching not only messages to and from these selectors but also any communications that mention them.
The brief filed by ABFE and ALA in support of the latest ACLU lawsuit argues that such sweeping surveillance inevitably includes the search of digital records relating to the distribution of books. “A patron’s search of a library or bookseller’s online collection; the purchase or reserve of physical books; the download of e-books; and the use of online reference tools — the privacy of all these interactions, and others, are invaded by government surveillance conducted on the Internet’s backbone,” the brief says.
It also cites the strong commitment that booksellers and librarians have demonstrated in protecting the records of their customers and patrons, including two key legal fights waged by booksellers — the challenge to Kenneth Starr’s effort to obtain Monica Lewinsky’s book purchases from Kramerbooks in Washington, D.C., in 1998, and the Tattered Cover Book Store’s successful effort to quash a search warrant for a customer’s records in Denver in 2000-2002.
The main purpose of the amicus brief is to assist the plaintiffs in fighting a government motion to dismiss the case on the grounds that they lack standing — the same argument that led to the dismissal of the first ACLU case. The amicus brief notes that booksellers and librarians have succeeded in establishing standing in cases involving physical books and that the same status should be granted when the surveillance involves digital records affecting books.
The booksellers’ and librarians’ brief was filed in with the federal district court in Maryland, where the ACLU lawsuit is being heard. Since amicus briefs are unusual at the district court level, there is no guarantee that the judge will agree to receive it.
The brief was written by the Electronic Frontier Foundation. In addition to ABFE and ALA, it is signed by the Association of Research Libraries, the Freedom to Read Foundation, and the International Federation of Library Associations and Institutions.