Court Rules Patriot Act's 'National Security Letter' Gag Provisions Unconstitutional

A federal appeals court today upheld, in part, a decision striking down
provisions of the Patriot Act that prevent national security letter
(NSL) recipients from speaking out about the secret records demands.
The decision comes in an American Civil Liberties Union and New York
Civil Liberties Union lawsuit challenging the FBI's authority to use
NSLs to demand sensitive and private customer records from Internet
Service Providers and then forbid them from discussing the requests.
Siding with the ACLU, the U.S. Court of Appeals for the Second Circuit
found that the statute's gag provisions violate the First Amendment.

"We are gratified that the appeals
court found that the FBI cannot silence people with complete disregard
for the First Amendment simply by saying the words 'national
security,'" said Melissa Goodman, staff attorney with the ACLU National
Security Project. "This is a major victory for the rule of law. The
court recognized the need for judicial oversight of the government's
dangerous gag power and rejected the Bush administration's position
that the courts should just rubber-stamp these gag orders. By upholding
the critical check of judicial review, the FBI can no longer use this
incredible power to hide abuse of its intrusive Patriot Act
surveillance powers and silence critics."

The appeals court invalidated parts
of the statute that wrongly placed the burden on NSL recipients to
initiate judicial review of gag orders, holding that the government has
the burden to go to court and justify silencing NSL recipients. The
appeals court also invalidated parts of the statute that narrowly
limited judicial review of the gag orders - provisions that required
the courts to treat the government's claims about the need for secrecy
as conclusive and required the courts to defer entirely to the
executive branch.

"The appellate panel correctly
observed that the imposition of such a conclusive presumption ignored
well-settled First Amendment standards and deprived the judiciary of
its important function as a protector of fundamental rights," said
Arthur Eisenberg, Legal Director for the New York Civil Liberties Union.

In this regard, the opinion stated:
"The fiat of a governmental official, though senior in rank and
doubtless honorable in the execution of official duties, cannot
displace the judicial obligation to enforce constitutional
requirements."

The court, therefore, also ruled
that the government must now justify the gag on the John Doe NSL
recipient in the case, a gag that has been in place for more than four
years.

The ACLU and New York Civil
Liberties Union filed this 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 and a half ago.

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.

The ACLU brought a new challenge to
the amended provision, and in September 2007, Judge Marrero again found
the statute unconstitutional.

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 Office
of Inspector General (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 Jameel Jaffer, Goodman and L. Danielle Tully of the ACLU National Security Project and Eisenberg of the NYCLU.

Today's decision can be found online at: www.aclu.org/safefree/nsaspying/38110lgl20081215.html

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