BY most accounts, Robert Mueller had a rough day in Congress. And though I am not piling on, I thought I would blog about the darker side of this American “Hero” (or “Villain,” depending on your politics). While working on “When They Come For You,” I came across this deeply disturbing story – which I included in the book – about the powers of the Federal Government and how Bob Mueller wielded them quite relentlessly as FBI Director.
In May 2005, George Christian, executive director of the [SAS1] Library Connection—a Windsor, Connecticut–based nonprofit that provides services to thirty libraries in the state—was hand-delivered a “National Security Letter” (NSL) from two FBI agents.
An NSL is an “administrative subpoena” (meaning no warrant from a judge is needed) issued to tech companies, phone providers, credit reporting agencies, financial institutions, travel agencies, and others demanding they turn over certain usage data (though not usually actual content) concerning their customers’ activities online. The NSL sent to Christian demanded “any and all subscriber information, billing information, and access logs of any person or entity related to the following,” the letter said. It then listed a Library Connection IP address and demanded information on everyone accessing the site on any library computers on February 15, 2005, between 4:00 p.m. and 4:45 p.m. eastern time.
Christian’s first impulse was to alert his library affiliates and, more importantly, their patrons, to let them know the government was trying to snoop on them. But that act would have landed him in a federal penitentiary.
“You are further advised,” the letter said, “that [the Patriot Act] prohibits any officer, employee or agent of yours from disclosing to any person that the FBI has sought or obtained access to information or records released under these provisions.” That’s right, Under Section 505 of the Patriot Act, it is a felony to discuss the matter with any other person, often for the rest of one’s life, with penalties up to five years in prison if convicted.
The gag order was authorized and signed by then FBI director Robert Mueller III.
So, not only was Mueller ordering Christian to violate the First, Fourth, and Fifth Amendment rights of library patrons, those same rights were being eviscerated for him and his top three staff named in the letter.
Christian was ready to fight Mueller, the FBI and DOJ, all the way to the Supreme Court, if needed.
In August 2005, despite the risks of having sought legal counsel, the “Connecticut Four,” as they were called, filed suit for a preliminary injunction against FBI director Mueller and U.S. Attorney General Alberto Gonzales to lift the gag order.
Because of Mueller’s gag order, the suit was filed under seal, with the plaintiffs listed as John Doe. They couldn’t even attend any legal proceedings in their own case.
On September 9, 2005, the district court ruled against Mueller and Gonzales and issued an injunction against the gag order. “It is apparent to this court that the loss of Doe’s ability to speak out now on the subject as a NSL recipient is a real and present loss of its First Amendment right to free speech that cannot be remedied,” the judge ruled.
Still, the court stayed the injunction, pending an appeal by Gonzalez and Mueller. That was scheduled for October 31.
Meanwhile, due to some poorly redacted court documents and solid reporting by the New York Times, Christian’s name and position, and that of one of his colleagues, were made public. “Our phones just rang off the hook, both at work and at home,” Christian said. The ACLU said not to answer. “But that made it a real strain on my staff because we’re there to really help the libraries out. And now I had to tell them no.”
The Feds scrubbed the offending identifications on the court website, but Mueller and DOJ were still desperate to keep the library-spying operation under wraps, despite the NSL being written about in
The ACLU and the American Library Association (ALA) filed for an emergency vacate of the gag order at the U.S. Supreme Court. It was delivered to Justice Ruth Bader Ginsburg, who handles cases from the Second Circuit.
On October 8, Ginsburg denied the emergency stay. While sympathetic toward the librarians, she felt the proper venue was back in the lower court. The gag order was upheld.
The next year, the federal government began taking measures to drop the Library Connection case, and a federal judge ordered the gag lifted.
Despite this victory, NSLs still get handed to companies and other institutions every day in America. Hundreds a year are sent to libraries. Things got bad under George W. Bush and continued in the Obama years. In 2013, Obama’s Intelligence Review Group said the government was issuing nearly 60 NSLs each day. I could not find data on NSLs issued under the Trump administration.
If you don’t think that NSLs could ever touch your daily life, you’re probably wrong. Between 2016 and mid-2017, Microsoft, Facebook, Apple, Yahoo!, Adobe, Twitter, and Cloudflare all announced receipt of at least one security letter but had been forbidden to disclose them to anyone, including the customers who were being spied upon.
And remember, Robert Mueller did not want you – or anyone else – to discover what happened to a small group of librarians – and countless thousands of others who received an NSL from him.