[Infowarrior] - Appeals Court strikes down Patriot Act gag provision

[Richard Forno]

ACLU Hails Victory In Challenge To Government's Power To Silence NSL  
Recipients

FOR IMMEDIATE RELEASE
CONTACT: (212) 549-2666; media at aclu.org

http://www.aclu.org/safefree/nsaspying/38113prs20081215.html

NEW YORK – A federal appeals court today upheld, in part, a decision  
striking down provisions of the Patriot Act that prevent national  
security letter (NSL) recipients from speaking out about the secret  
records demands. The decision comes in an American Civil Liberties  
Union and New York Civil Liberties Union lawsuit challenging the FBI's  
authority to use NSLs to demand sensitive and private customer records  
from Internet Service Providers and then forbid them from discussing  
the requests. Siding with the ACLU, the U.S. Court of Appeals for the  
Second Circuit found that the statute's gag provisions violate the  
First Amendment.

"We are gratified that the appeals court found that the FBI cannot  
silence people with complete disregard for the First Amendment simply  
by saying the words 'national security,'" said Melissa Goodman, staff  
attorney with the ACLU National Security Project. "This is a major  
victory for the rule of law. The court recognized the need for  
judicial oversight of the government's dangerous gag power and  
rejected the Bush administration's position that the courts should  
just rubber-stamp these gag orders. By upholding the critical check of  
judicial review, the FBI can no longer use this incredible power to  
hide abuse of its intrusive Patriot Act surveillance powers and  
silence critics."

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. The appeals court also invalidated  
parts of the statute that narrowly limited judicial review of the gag  
orders – provisions that required the courts to treat the government's  
claims about the need for secrecy as conclusive and required the  
courts to defer entirely to the executive branch.

"The appellate panel correctly observed that the imposition of such a  
conclusive presumption ignored well-settled First Amendment standards  
and deprived the judiciary of its important function as a protector of  
fundamental rights," said Arthur Eisenberg, Legal Director for the New  
York Civil Liberties Union.

In 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."

The court, therefore, also ruled that the government must now justify  
the gag on the John Doe NSL recipient in the case, a gag that has been  
in place for more than four years.

The ACLU and New York Civil Liberties Union filed this 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 is prohibited  
from disclosing its 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 over a year and a half  
ago.

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 ACLU brought a new challenge to the amended provision, and in  
September 2007, Judge Marrero again found the statute unconstitutional.

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 Office of Inspector  
General (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 Jameel Jaffer, Goodman and L. Danielle  
Tully of the ACLU National Security Project and Eisenberg of the NYCLU.

Today's decision can be found online at: www.aclu.org/safefree/nsaspying/38110lgl20081215.html

More information on Doe v. Mukasey and NSLs is available online at: www.aclu.org/nsl