This case challenges the constitutionality of a statute authorizing the FBI to compel communications entities, including internet service providers (ISPs) and telephone companies, to produce customer records secretly and without judicial supervision. Section 2709 of Title 18 of the United States Code was enacted in 1986 as part of the Electronic Communications Privacy Act, which claimed to balance the public’s right to privacy in "stored wire and electronic communications" with national security interests. Section 2709 has been expanded several times since then, most recently as part of the USA Patriot Act of 2001. The Patriot Act provision permitted the FBI to send national security letters (NSLs) to banks, libraries, telephone and Internet companies, and many other businesses requesting customers’ private information whenever the FBI certifies that those records are relevant to an authorized national security investigation. Section 2709 treated an NSL as a unique form of administrative subpoena, and the statute categorically barred NSL recipients from disclosing to anyone that the demand was ever made. The recipient’s right to counsel was not explicitly discussed.
In 2004 the NYCLU and ACLU were made aware of an NSL issued to an ISP under the authority of the Patriot Act. The NYCLU and ACLU filed a lawsuit along with the recipient of the NSL challenging the constitutionality of Section 2709. The suit asserted that the statute is unconstitutional both on its face and as applied to the facts of this case. The plaintiffs argued that Section 2709’s broad subpoena power violates the First, Fourth and Fifth Amendments by allowing the FBI to obtain private information without any form of judicial review. The plaintiffs further argued that Section 2709’s non-disclosure provision is an unlimited suppression of free speech that indefinitely burdens First Amendment rights.
On Sept. 28, 2004, Judge Victor Marrero of the Southern District of New York struck down the NSL statute and the associated gag provision. Marrero held that that the FBI’s application of Section 2709 required a "compulsory, secret, and unreviewable production of information" in violation of the Fourth Amendment. Moreover, the court held that the "extraordinary scope" of the non-disclosure provision of Section 2709 violated the First Amendment. The court expressed concerns that Section 2709’s lack of clear enforcement mechanisms or any explicit reference to the recipients’ access to counsel would result in the effective coercion of NSL recipients without any judicial process. The government appealed Judge Marrero's decision to the Second Circuit Court of Appeals.
In March 2006, while the appeal was pending, Congress amended the NSL provision of the Patriot Act. The amended law makes it clear that recipients could consult with counsel to assist in responding to the document demand. However, the amendment seriously limited the scope of judicial review of NSLs as applied to the non-disclosure requirement. The Second Circuit ruled in May 2006 that a district court should consider the constitutionality of the provision in light of recent amendments made by Congress. The NYCLU and ACLU returned to court in the Southern District of New York on Aug. 15, 2007, arguing that the amended law was unconstitutional because it impermissibly narrowed judicial authority in violation of the separation-of-powers principle and the First Amendment. Judge Marrero agreed and struck down the NSL provision of the amended law. The government appealed the decision. On Dec. 15, 2008, the U.S. Court of Appeals for the Second Circuit upheld, in part, the District Court’s ruling. 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. T
he appeals court also invalidated parts of the statute that narrowly limited judicial review of the gag orders. On 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. 'Under no circumstances should the Judiciary become the handmaiden of the Executive.'" The court also ruled that the government must now justify the gag on John Doe NSL recipient in the case. On Aug. 10, 2010, the FBI partially lifted a gag it imposed om 2004 on the ACLU's and NYCLU's client, Nicholas Merrill, which allowed him to his identity and speak about his experience for the first time since receiving the NSL. Merrill had received the NSL as the president of an Internet service provider (ISP). This case was originally filed as Doe v. Ashcroft.
S.D.N.Y. 04 Civ. 2614 (VM) (direct)