Government Can't Continue To Silence Surveillance Letter Recipient With Secret Evidence

A
federal court has ruled that the government must reveal portions of the
evidence it has relied on to justify its continued gag order on an
Internet service provider (ISP) that the FBI served with a national
security letter (NSL) more than five years ago. The ruling, which
requires the government to produce an unclassified summary of that
evidence as well as a redacted version of a secret declaration it filed
in June, came in a lawsuit brought by the American Civil Liberties
Union and the New York Civil Liberties Union on behalf of the ISP.
Under a Patriot Act provision, the FBI uses NSLs to demand personal
customer records from ISPs, financial institutions and credit companies
without prior court approval. The FBI routinely imposes gag orders on
NSL recipients which prohibit them from disclosing information about
the FBI's demand for sensitive customer records.

"The government's reliance on
completely secret evidence to justify this five-year-old,
unconstitutional gag order undermined our John Doe client's right to a
fair process," said Melissa Goodman, staff attorney with the ACLU
National Security Project. "The court was right to find that the
government cannot continue to silence Doe based entirely on evidence we
are not even allowed to see, let alone given a meaningful opportunity
to refute."

Because the FBI imposed a gag order on the ISP, the lawsuit, now called Doe v. Holder,
was initially 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
five years old and even though the FBI abandoned its demand for records
from the ISP over two years ago.

In December 2008, the U.S. Court of
Appeals for the Second Circuit ruled that parts of the NSL statute's
gag provisions were unconstitutional, specifically the sections that
wrongly placed the burden on NSL recipients to challenge gag orders,
narrowly limited judicial review of gag orders and required courts to
defer entirely to the executive branch. The court of appeals sent the
case back to the U.S. District Court for the Southern District of New
York and ordered the government to finally justify the
constitutionality of the gag on Doe. In June 2009, the government
submitted its justification for the gag on Doe entirely in secret, in a
classified declaration that even Doe's ACLU attorneys couldn't see.

On Wednesday, the district court
ordered the government to produce an unclassified summary of the
evidence it is relying on to justify the continued gag on the ISP, as
well as a redacted version of the declaration it filed in June.

"The court's important ruling will
have ramifications far beyond this case," said Jameel Jaffer, Director
of the ACLU National Security Project. "Every year, the FBI serves
thousands of national security letters and virtually every one of those
letters comes with a gag order. As this ruling makes clear, NSL
recipients are entitled to a meaningful opportunity to challenge these
gag orders in court."

Attorneys on the case are Jaffer,
Goodman and Larry Schwartztol of the ACLU National Security project and
Arthur Eisenberg, Legal Director of the NYCLU.

More about the case, including the legal documents, is available online at: www.aclu.org/safefree/nationalsecurityletters/22023res20051130.html