ACLU Victory - Court Again Finds NSL Provision Unconstitutional

A federal court today struck down the amended Patriot Act's National Security Letter (NSL) provision. The law has permitted the FBI to issue NSLs demanding private information about people within the United States without court approval, and to gag those who receive NSLs from discussing them. The court found that the gag power was unconstitutional and that because the statute prevented courts from engaging in meaningful judicial review of gags, it violated the First Amendment and the principle of separation of powers.

U.S. District Court Judge Victor Marrero wrote, "In light of the seriousness of the potential intrusion into the individual's personal affairs and the significant possibility of a chilling effect on speech and association - particularly of expression that is critical of the government or its policies - a compelling need exists to ensure that the use of NSLs is subject to the safeguards of public accountability, checks and balances, and separation of powers that our Constitution prescribes.

NSLs may be used to obtain access to subscriber, billing or transactional records from Internet service providers; to obtain a wide array of financial and credit documents; or even to obtain library records. In almost all cases, recipients of NSLs are forbidden, or "gagged," from disclosing that they have received the letters, even to close family and friends. This has been a severe hardship on NSL recipients, who not only have been forced to keep this major event secret, but who have been prevented from meaningfully participating in public discussions about NSLs. The court today held that because the gag provisions cannot be separated from the entire amended statute, the court was compelled to strike down the entire statute.

"As the court recognized, there must be real, meaningful judicial checks on the exercise of executive power," said Melissa Goodman, an ACLU staff attorney on this case. "Without oversight, there is nothing to stop the government from engaging in broad fishing expeditions, or targeting people for the wrong reasons, and then gagging Americans from ever speaking out against potential abuses of this intrusive surveillance power."

The case, Doe v. Gonzales, was originally filed in April 2004 on behalf of an anonymous Internet access company that had received an NSL. Although the FBI has since dropped its NSL demand, the John Doe has remained under a gag order. In September 2004, Judge Marrero initially struck down the Patriot Act NSL provision as unconstitutional, writing that "democracy abhors undue secrecy." The landmark ruling held that permanent gag orders imposed under the NSL law violated free speech rights protected by the First Amendment.

The government appealed Judge Marrero's first ruling, but Congress amended the NSL provision before the court issued a decision. In May 2006 the appeals court asked the district court to consider the constitutionality of the amended law. In a concurring opinion, Judge Richard Cardamone strongly criticized the government for continuing to argue that a permanent ban on speech would be permissible under the First Amendment.

In his latest decision, Judge Marrero cited the slavery and internment cases Plessy v. Ferguson and Korematsu v. United States: "These examples, however few in number, loom large in proportions of the tragic ill-effects felt in the wake of the courts' yielding fundamental ground to other branches of government on the constitutional role the judiciary must play in protecting the fundamental freedoms of the American people. Viewed from the standpoint of the many citizens who lost essential human rights as a result of such expansive exercises of governmental power unchecked by judicial rulings appropriate to the occasion, the only thing left of the judiciary's function for those Americans in that experience was a symbolic act: to sing a requiem and lower the flag on the Bill of Rights."

In its case, the ACLU and the NYCLU said that the gag provision has had significant effects on the John Doe plaintiff. John Doe was prevented from participating in the contentious Patriot Act reauthorization debate that raged across the nation in late 2005 and early 2006. Even though Doe had firsthand knowledge of this sweeping FBI power, he could not speak about the fact that he had received an NSL, divulge the breadth of the letter, or discuss the ramifications on his business relationships.

"The courts play an important role in balancing the requirements of national security against the constitutional protections that safeguard our basic freedoms and liberties," said Arthur Eisenberg, Legal Director of the NYCLU. "We are delighted that the court fulfilled that important function in this case."

While reports previously indicated a hundred-fold increase to 30,000 NSLs issued annually, an extraordinary March 2007 report from the Justice Department's own Inspector General puts the actual number at over 143,000 NSLs issued between 2003 and 2005. The same investigation also found serious FBI abuses of the NSL power and numerous potential violations of the law.

In a related case, the ACLU represented four librarians who are on the board of Library Connection, a library consortium in Connecticut. The consortium was served with an NSL and challenged both the letter and the accompanying gag. After many months of litigation in which a district court found the gag on Library Connection was unconstitutional, the government withdrew its demand for information and abandoned the gag order.

In addition, in June, the ACLU filed a lawsuit to enforce its Freedom of Information Act request to force the Department of Defense and the CIA to turn over documents concerning those agencies' use of NSLs. That lawsuit is pending.

The ACLU is also working on the legislative front to fight the authorization of NSLs. In response to the March report from the Justice Department's Office of the Inspector General finding serious NSL abuses and making clear that the FBI cannot police itself, Representatives Jerrold Nadler (D-NY) and Jeff Flake (R-AZ) introduced a bill to fix the problems with the NSL power. The ACLU continues to urge Congress to enact this vital legislation.

A copy of today's court order can be found on line here.

More information about the case is available here.