ACLU Asks Appeals Court to Affirm Decision Striking Down Patriot Act's 'National Security Letter' Provision

In
oral arguments today, the American Civil Liberties Union urged a
federal appeals court to uphold a decision striking down the national
security letter (NSL) provision of the Patriot Act. This provision
gives the FBI the authority to issue letters demanding private
information about people within the United States, and to place the
recipients of the letters under indefinite gag orders. Recent reports
issued by the Department of Justice's Office of the Inspector General
(OIG) have revealed the FBI's widespread, systemic abuse of its NSL
power.

"The FBI shouldn't have the
unreviewable power to impose gag orders on the recipients of national
security letters," said Jameel Jaffer, Director of the ACLU National
Security Project who argued today in court. "As the district court
ruled, the FBI's power to silence the recipients of these letters has
to be subject to judicial oversight. Without that check, the FBI can
use its power to hide abuses and silence its critics - and that's
exactly what it's been doing."

The ACLU and New York Civil
Liberties Union filed a lawsuit in April 2004 on behalf of an Internet
Service Provider (ISP) that received an NSL. Because the FBI imposed a
gag order on the ISP, the lawsuit was filed under seal, and even today
the ACLU is prohibited from disclosing its client's identity. The FBI
continues to maintain the gag order even though the underlying
investigation is more than four years old (and may well have ended),
and even though the FBI abandoned its demand for records from the ISP
over a year ago.

In the lawsuit, now called Doe v. Mukasey,
the ACLU initially challenged both the FBI's power to demand records
without judicial oversight and its power to impose gag orders on NSL
recipients.

In September 2004, Judge Victor
Marrero of the U.S. District Court for the Southern District of New
York struck down the NSL statute, ruling that the FBI could not
constitutionally demand sensitive records without judicial review and
that permanent gag orders violated the First Amendment guarantee of
free speech. The government appealed the ruling, but Congress amended
the NSL provision before the court issued a decision.

"This amendment violates not only
the First Amendment's strong presumption in favor of free speech but
also impermissibly limits the capacity of courts to behave as courts
and to adjudicate fairly the propriety of any gag order," said Arthur
Eisenberg, NYCLU Legal Director.

The ACLU brought a new challenge to
the amended provision, and in September 2007, Judge Marrero again found
the statute unconstitutional. Today, the ACLU presented oral arguments
in the government's appeal of that decision.

Bills aimed at bringing the NSL
authority back in line with the Constitution were introduced last year
in both the House and Senate after reports had confirmed and detailed
the widespread abuse of the authority by federal law enforcement. Since
the Patriot Act was passed in 2001, relaxing restrictions on the FBI's
use of the power, the number of NSLs issued has seen an astronomical
increase, to nearly 200,000 between 2003 and 2006. A March 2008 OIG
report revealed that, among other abuses, the FBI misused NSLs to
sidestep the authority of the Foreign Intelligence Surveillance Court
(FISC). In one instance, the FBI issued NSLs to obtain information
after the FISC twice refused its requests on First Amendment grounds.
The OIG also found that the FBI continues to impose gag orders on about
97 percent of NSL recipients and that, in some cases, the FBI failed to
sufficiently justify why the gag orders were imposed in the first
place.

In addition to this case, the ACLU
has challenged this Patriot Act statute multiple times. One case was
brought on behalf of a group of Connecticut librarians and another
case, called Internet Archive v. Mukasey,
involved an NSL served on a digital library in California. In the
latter case, the FBI withdrew the NSL and the gag as part of the
settlement of a legal challenge brought by the ACLU and the Electronic
Frontier Foundation.

Attorneys in Doe v. Mukasey are Jaffer, Melissa Goodman and L. Danielle Tully of the ACLU National Security Project and Eisenberg of the NYCLU.

The ACLU's brief can be found online at: www.aclu.org/safefree/nationalsecurityletters/34476lgl20080310.html

More information on Doe v. Mukasey and NSLs is available online at: www.aclu.org/nsl