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EFF Asks Court on Behalf of Libraries and Booksellers to Recognize Readers’ Right to Be Free of NSA’s Online Surveillance

DEEPLINKS BLOG
September 3, 2015

EFF Asks Court on Behalf of Libraries and Booksellers to Recognize Readers’ Right to Be Free of NSA’s Online Surveillance

It should be no surprise that libraries and bookstores—the places where you can go pick up a copy of 1984 or Darkness at Noon—are privacy hipsters. They’ve been fighting overbroad government surveillance since before it was cool. That’s why we’re proud to have filed an amicus brief on behalf of a coalition of associations of libraries and booksellers in Wikimedia v. NSA, a case challenging the government’s warrantless surveillance of the Internet backbone.

The case was brought by our colleagues at the ACLU on behalf of Wikimedia—the non-profit that operates Wikipedia—and a broad spectrum of other media, human rights and legal organizations. The case challenges the NSA’s so-called Upstream surveillance, a publicly admitted program that involves copying Internet traffic—including e-mails, chat, web browsing and other communications—as the data traverses the fiber optic backbone of the Internet. Now the government has brought a motion to dismiss the case, arguing that Wikimedia and the other plaintiffs cannot show that their communications are collected. According to the government, Wikimedia can’t assert its own rights or the rights of its users and therefore lacks standing to sue.

That’s where libraries and bookstores come in. EFF’s amicus brief represents of a range of these groups: the American Booksellers Association, the American Library Association, the Association of Research Libraries, the Freedom to Read Foundation, and the International Federation of Library Associations and Institutions

As the brief explains, the government is dead wrong when it says organizations like Wikimedia can’t represent its users’ First Amendment rights. Upstream surveillance sweeps in readers’ online interactions with libraries and bookstores, including sensitive information like readers’ choice of reading material, which is protected by the First Amendment. As the Supreme Court has explained, the constitutional guarantee of free speech also includes protections for the things that go along with free speech: publishing and receiving information anonymously and associating privately. Reading lists are a prime example—if the government knows what you’re reading, you’re likely to think twice about checking out controversial or embarrassing books.

As providers of the written word, libraries and booksellers are the natural protectors of readers’ First Amendment rights. The brief explains that libraries and bookstores have long stood up for reader privacy—the American Library Association in particular has included a promise of patron confidentiality in its Library Bill of Rights since 1939. In recognition of that important relationship, the Supreme Court has made clear that booksellers and libraries have standing to bring claims based on readers’ First Amendment rights. While most of the cases involving protection for readers’ records have arisen in the brick-and-mortar context, there’s no reason why online interactions between readers and libraries and booksellers should be different. And of course, Internet users’ consultations of Wikipedia articles are similarly entitled to this protection, meaning that Wikimedia should be empowered to raise its users’ First Amendment rights as well as its own. We hope the court agrees.

Special thanks to Jan I. Berlage of Gohn Hankey Stichel & Berlage LLP for acting as our local counsel in filing the brief.

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