NYCLU, ACLU Ask Appeals Court to Affirm Decision Striking Down Patriot Act ‘National Security Letter’ Provision

In oral arguments today, the American Civil Liberties Union and New York Civil Liberties Union urged a federal appeals court to uphold a decision striking down the national security letter (NSL) provision of the Patriot Act. This provision gives the FBI the authority to issue letters demanding private information about people within the United States, and to place the recipients of the letters under indefinite gag orders. Recent reports issued by the Department of Justice’s Office of the Inspector General (OIG) have revealed the FBI’s widespread, systemic abuse of its NSL power.

“The FBI shouldn’t have the unreviewable power to impose gag orders on the recipients of national security letters,” said Jameel Jaffer, director of the ACLU National Security Project who argued today in court. “As the district court ruled, the FBI’s power to silence the recipients of these letters has to be subject to judicial oversight. Without that check, the FBI can use its power to hide abuses and silence its critics – and that’s exactly what it’s been doing.”

The ACLU and NYCLU filed a 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 and NYCLU are prohibited from disclosing their 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 more than a year ago.

In the lawsuit, now called Doe v. Mukasey, the ACLU and NYCLU initially challenged both the FBI’s power to demand records without judicial oversight and its power to impose gag orders on NSL recipients.

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 2006 amendments allowed for judicial review in form but not in substance. Under the amendments, high level FBI officials are permitted to certify that non-disclosure is necessary to protect a criminal investigation and courts are required by the statute to enforce the gag unless it finds the certification “was made in bad faith.”

“This amendment violates not only the First Amendment’s strong presumption in favor of free speech but also impermissibly limits the capacity of courts to behave as courts and to adjudicate fairly the propriety of any gag order,” said NYCLU Legal Director Arthur Eisenberg.

The ACLU and NYCLU brought a new challenge to the amended provision, and in September 2007, Judge Marrero again found the statute unconstitutional. Today, the ACLU and NYCLU presented oral arguments in the government’s appeal of that decision.

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 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 Jaffer, Eisenberg, and Melissa Goodman and L. Danielle Tully of the ACLU National Security Project.

To read the brief in the case, click here.

More information on Doe v. Mukasey and NSLs is available online here.