Yes! A judge has just said (again) that NSLs are unconstitutional!! Well, duh, we knew that. But it’s good to have it on record, and with a civics lesson built right in.
Specifically, the automatic and unlimited gag order, and the indiscriminate way in which they’ve been handed out, offers the FBI an opportunity to suppress speech based on its content – broadly and indefinitely. That’s a violation of the first amendment. Later in the decision the judge apologizes for stating the obvious, but points out that our system of government is built on a separation and balance of powers. Congress may decide benightedly to hand its authority over to the executive, but they can’t make laws that do the same with the powers of the judicial branch. That’s a violation of the doctrine of the separation of powers, so NSLs are unconstitutional on those grounds. (The law, passed by Congress, says the executive doesn’t have to pay attention to those men in black dresses. Well … that’s not within their authority. Whoops!)
The decision (built around a John Doe – but not the John Doe of the library case, because the government dropped their gag order to avoid losing in court) – has been stayed pending appeal. So if you get an NSL, don’t tell anyone.
Meanwhile, in another matter, the Justice Department just told the FCC that they oppose net neutrality. Their pals at AT&T might suffer and that would hurt consumers because … uh … let’s see …. oh yeah! If AT&T couldn’t charge more, they couldn’t use that money to develop the Internet to its full potential and that would be bad for us. Screw libraries and universities, what do they contribute? Bunch of troublemakers.
A friend writes:
You all know firsthand as academic librarians that the present system of scholarly communication is badly broken. Faster and wider sharing of knowledge, like that funded by the National Institutes of Health (NIH), would fuel the advance of science. Broad communication of research results is an essential component of the US government’s investment in science. The NIH strongly supports this goal and has instituted a voluntary system intended to make scientific research more broadly available for use. Unfortunately, for a variety of reasons, that system is not working. That is why NIH is now asking Congress to include language through appropriations to make the program mandatory.
Recently, weâ€™ve seen wonderful developments as both the US House and Senate Appropriations Committees have approved language in their FY08 Labor, Health and Human Services Appropriations Bills that would require NIH-funded researchers to make their final manuscripts publicly accessible within 12 month of publication in peer reviewed journals.
We need your help to keep the momentum going. The full House of Representatives and the full Senate will vote on their respective measures this summer. The House is expected to convene on Tuesday, July 17. Weâ€™re asking that you contact your US Representative and your US Senators by phone or fax as soon as possible and no later than Monday afternoon. Urge them to maintain the Appropriations Committee language. (Find talking points and contact info for your legislators in the ALA Legislative Action Center. It is entirely possible that an amendment will be made on the floor of the House to delete the language in the NIH policy.
Want to know more? Listen to an interview with Heather Joseph of SPARC on the ALA Washington Office District Dispatch blog. Find background on the issue along with tips on communicating effectively with your legislators in the last two issues of ACRLâ€™s Legislative Update and at the Alliance for Taxpayer Access website.
It’s critical that you, as constituents, express your support for the current language in the appropriations bill that would make the NIH public access policy mandatory. Tell your legislators what it would mean to you, your students, your faculty and your community if you could all gain access to this research. It is especially important for supporters to speak up now given how vocal opponents have been (see recent LJ Academic Newswire article and AAP letter.