Court Rules FBI Can Continue To Silence National Security Letter Recipient

A
federal court today ruled that the government can continue to enforce a
five-year-old gag order on an Internet service provider (ISP) that the
FBI served with a national security letter (NSL) many years ago. The
ruling 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 can use NSLs to demand personal records
about innocent customers from ISPs, financial institutions and credit
companies without prior judicial approval, and then bar NSL recipients
from disclosing anything about the record demand.

"We're deeply disappointed that the
court ruled that the FBI can continue to gag our John Doe client, who
has been silenced for more than five years," said Melissa Goodman,
staff attorney with the ACLU National Security Project. "This gag -
which we continue to believe is unnecessary and unconstitutional - has
prohibited Doe from participating in the public debate about the
Patriot Act and has been used to suppress key information about the
FBI's misuse of NSLs. The FBI's overuse of the NSL gag power has
allowed the FBI to manipulate the surveillance debate and to deprive
Congress and the public of crucial information that would inform the
ongoing congressional debate about this intrusive surveillance power."

In addition to ruling that the FBI
could continue to enforce its long-running gag on John Doe, the court
also ruled that the FBI can continue to suppress an "attachment" to the
NSL Doe received. The ACLU argued that the attachment, if disclosed,
would show that the FBI tried to obtain records that it was not
entitled to obtain under the NSL statute.

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 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. While the district court
ordered the government to produce an unclassified summary, most of the
evidence used to justify the continued gag on the ISP remains a secret.

"Continuing to impose a blanket gag
order on our Doe client places a serious burden on his First Amendment
rights. It is important that NSL recipients - those with first-hand
knowledge of the FBI's actual use and abuse of its NSL power - be
allowed to speak out," said Larry Schwartztol, staff attorney with the
ACLU National Security Project.

Bills are currently pending in both
the House and Senate that would amend the NSL gag by requiring the
government to convince a court that a national security gag order is
necessary.

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

Today's ruling is available online at: www.aclu.org/safefree/nationalsecurityletters/41311lgl20091020.html

More about the case is at: www.aclu.org/safefree/nationalsecurityletters/22023res20051130.html