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 NYCLU Legal Director Arthur Eisenberg.

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