Internet Service Provider's NSL Challenge - Doe v. Holder
In 2004, the ACLU filed a lawsuit challenging the FBI's authority to issue "national security letters" (NSLs) under the USA Patriot Act. The suit, the first of its kind, was brought on behalf of an Internet Service Provider that had been served with an NSL seeking sensitive information about its subscribers. The NSL included a gag order that prohibited the ISP from disclosing — to anyone — that the FBI had demanded information from it. Because of the gag order, the lawsuit was filed under seal. Four years later, the gag order has been lifted in part, but the ACLU is still prohibited from disclosing the identity of its client.
In September 2004, Judge Victor Marrero of the U.S. District Court for the Southern District of New York ruled that the NSL statute was unconstitutional under the First and Fourth Amendments. The government appealed the decision to the U.S. Court of Appeals for the Second Circuit. Before the appeals court could issue a decision, however, Congress amended the statute. The amendments remedied some of the statute's problems but made other problems worse. In particular, the amendments made the statute's gag provisions — the non-disclosure provisions — even more oppressive.
The ACLU returned to court in 2006 to challenge the amended gag provisions. In September 2007 Judge Marrero struck down the entirety of the NSL provisions of the Patriot Act. Judge Marrero ruled that the NSL statute's gag provisions violate the First Amendment and the principle of separation of powers. In December 2008, the U.S. Court of Appeals for the Second Circuit upheld this decision in part, finding the portions of the statute violated the First Amendment; 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. At that time, the appeals court also ruled that the government must justify the more than four-year long gag on the "John Doe" NSL recipient in the case.
In June 2009, the government attempted to satisfy this requirement by filing secret documents with the court, which not even Doe’s lawyers had any access to. The ACLU asked the court to require the government to make at least some portions of that filing public, and Judge Marrero ordered the government to partially disclose its secret filing and to release a public summary of its evidence.
NEWS
> Government Can't Continue to Silence Surveillance Letter Recipient with Secret Evidence (8/7/2009)
> Court Rules Patriot Act's "National Security Letter" Gag Provisions Unconstitutional (12/15/2008)
> ACLU Asks Court To Affirm Decision Striking Down Patriot Act NSL Provision (3/14/2008)
> Federal Court Strikes Down National Security Letter Provision of Patriot Act (9/6/2007)
> Patriot Act Gag Power is Unconstitutional, ACLU Tells Court (8/15/2007)
> ACLU Returns to Court to Battle Controversial Surveillance Law (8/7/2006)
> Federal Judge Says Patriot Act "Gag" Is Undemocratic (5/24/2006)
> Court Urged to Uphold Patriot Act Powers Block (11/2/2005)
> Court Unseals More Records on FBI's Use of "NSLs" (3/8/2005)
> Justice Department Manipulates Patriot Act Ruling (10/1/2004)
> Federal Court Strikes Down Patriot Act Surveillance Power (9/29/2004)
> Government Suppresses Patriot Act Powers Information (8/19/2004)
> Documents Unsealed in ACLU Patriot Act Challenge (5/25/2004)
> Judge Revises Sealing Order in Patriot Act Challenge (5/12/2004)
> ACLU Discloses Documents in Challenge to Patriot Act Powers (4/28/2004)
OTHER RESOURCES
> Jameel Jaffer, ACLU National Security Project, on National Security Letters Before House Subcommittee on Constitution, Civil Rights and Civil Liberties (4/15/2008)
> ACLU Interested Persons Memo on the Office of the Inspector General's Audit of the FBI's Use of National Security Letters (4/7/2008)
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LEGAL DOCUMENTS |
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| DISTRICT COURT DOCUMENTS (2006-2007) | ||
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> Opinion Decision and Order (9/6/2007) |
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| > Second Declaration of John Doe (9/8/2006) > Third Declaration of Ann Beeson (9/8/2006) |
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| > Exhibits (9/8/2006) | ||
| > Second Declaration of Anthony Romero (9/8/2006) > Declaration of George Christian (9/8/2006) > Statement of Undisputed Facts (9/8/2006) |
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| > ACLU Motion for Partial Summary Judgment (9/8/2006) > Second Amended Complaint (7/24/2006) |
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| APPEALS COURT DOCUMENTS (2005-2006) | ||
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> 2nd Circuit Decision in Doe v. Gonzales(5/23/2006) |
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> EFF, et. al. |
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| DISTRICT COURT DOCUMENTS (2004) | ||
| > Decision of Judge Victor Marrero (9/28/2004) > Government's Reply Memo of Law (8/23/2004) > Plaintiffs' Motion to Exclude Government's Ex Parte Declaration (7/30/2004) |
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| > Plaintiff's Reply and Opposition Memo of Law (7/30/2004) | ||
| > Second Declaration of Ann Beeson | ||
| > Government's Memo of Law in Opposition and in Support of Cross-Motion for Dismissal or Summary Judgment (6/28/2004) | ||
| > Declaration of FBI Special Agent > Declaration of David W. Szady |
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| > Plaintiffs' Memo of Law in Support of Summary Judgment (5/17/2004) | ||
| > Declaration of Simson L. Garfinkel > Declaration of John Doe > Declaration of Anthony D. Romero, ACLU Executive Director > Declaration of Ann Beeson |
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| > Plaintiffs' Motion for Summary Judgment (5/17/2004) > Memo in Support of Plaintiffs' Motion to Unseal Case (4/30/2004) > Plaintiffs' Motion to Unseal Case (4/30/2004) > Amended Complaint for Declaratory and Injunctive Relief (5/13/2004) > Plaintiffs' Motion for Leave to File Case Under Seal (4/6/2004) > EFF, et al. > ALA, et al. |
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