American Booksellers Foundation for Free _Expression
http://www.abffe.org/

November 1, 2001

Dear BookSeller,

Last week, President Bush signed into law an antiterrorism bill that gives the federal government expanded authority to search your business records, including the titles of the books purchased by your customers. This letter contains our best legal judgment on what you should do if you are served with a court order under the Foreign Intelligence Surveillance Act (FISA).

Under the new law, the director of the FBI may seek an order "for any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities." The request for such an order is made to a judge who sits in a special court that is sometimes called the "spy court." The judge makes his decision "ex parte," meaning there is no opportunity for you or your lawyer to object in court. You cannot object publically either. The new law includes a gag order that prevents you from disclosing "to any other person" the fact that you have received an order to produce documents.

ABFFE is deeply concerned by the potential chilling effect of court orders issued to booksellers under this new law. Normally, when a bookseller receives a subpoena for customer information, he or she has the opportunity to ask the court to quash the order on First Amendment grounds. In several cases, booksellers have successfully resisted subpoenas.

Under FISA, however, booksellers may not have this chance. Depending on the wording of the order, the bookseller may be required to immediately turn over the records that are being sought.

Nevertheless, ABFFE's advice to booksellers who receive a court order under FISA remains the same as it is to those who receive a subpoena. The first thing you should do is call your attorney. Then, either you or your attorney should contact ABFFE so that we can put you in touch with lawyers who are familiar with the law surrounding the privacy of bookstore records.

Although the wording of the law seems to suggest that contacting anyone about the court order is forbidden, it is ABFFE's belief that you remain entitled to legal counsel. Therefore, you may call your attorney and/or ABFFE. Because of the gag order, however, you should not tell ABFFE that you have received a court order under FISA. You can simply tell us that you need to contact ABFFE's legal counsel.

Legal counsel is important even in cases where it is not possible to challenge a court order. It may be possible for you to have a lawyer present during a search of your store records. If so, the lawyer will be able to help you ensure that there is no violation of the privacy of your other customers.

However, it is possible that the FBI will demand immediate access to your records. If the agents are unwilling to permit you to contact your attorney, you should cooperate with them. Otherwise, you may be arrested for disobeying a court order. If you have no choice but to turn over records, the best thing you can do is help the FBI find the information that it is looking for and thus avoid exposing the records of other customers. If you have legal questions after the search had been conducted, you can call your attorney or ABFFE will put you in touch with its lawyers.

At times of national crisis, civil liberties are very vulnerable. Although the new antiterrorism law contains a number of provisions that were deeply disturbing to civil libertarians, it passed the House by a vote of 356-to-66. In the Senate, Russell D. Feingold of Wisconsin was the only dissenting vote.

We believe the climate of opinion will eventually shift, allowing a reasoned debate of the dangers posed by these provisions. In the meantime, ABFFE will continue to work to remind public officials of the danger of sacrificing free speech in the quest for security.

I want to take this opportunity to thank ABFFE members for their support and to urge anyone who isn't a member to consider joining now. Whether we can continue to act as the bookseller's voice in the vote against censorship depends on you.

Yours very truly,

Chris Finan
President

American Booksellers Foundation for Free _Expression
http://www.abffe.org/