DETROIT -- Citing improvements to the law, the American Civil Liberties Union today withdrew a three-year-old lawsuit over Section 215 of the Patriot Act, but said it is prepared to defend individuals who receive demands for information under the provision.
Under the original Patriot Act, passed by Congress in October 2001 with virtually no debate, Section 215 radically expanded the FBI’s power to demand records and personal belongings of innocent people in the United States without any judicial oversight. After the ACLU filed its lawsuit and launched a nationwide campaign to reform the Patriot Act and restore checks and balances, Congress revised the law earlier this year to allow people who receive a demand for records to consult with a lawyer and challenge the demand in court.
“While the reauthorized Patriot Act is far from perfect, we succeeded in stemming the damage from some of the Bush administration’s most reckless policies,” said ACLU Associate Legal Director Ann Beeson. “The ACLU will continue to monitor how the government applies the broad Section 215 power and we will challenge unconstitutional demands on a case-by-case basis.”
The new Section 215 provision still presents serious constitutional problems. It gags recipients automatically and authorizes broad demands for information, which the ACLU said is a violation of individuals’ free speech rights. Although recipients may now challenge the gag orders, such challenges would be difficult because judges must defer to the FBI’s view that secrecy is necessary. The ACLU said it is prepared to offer legal assistance to businesses, organizations or individuals that receive Section 215 orders.
Before the ACLU filed the lawsuit, then Attorney General John Ashcroft refused to confirm whether or not the FBI had used Section 215 to demand personal records. Later the Attorney General admitted to using the provision, and last year the Justice Department revealed that it had issued 35 Section 215 orders. By comparison, the Washington Post reported in November 2005 that the FBI issues more than 30,000 demands a year for records under another provision of the Patriot Act that authorizes national security letters.
The ACLU is continuing its challenge to the national security letter provision in another case, Doe v. Gonzales, in the Southern District of New York. Before recent amendments to the law, the court had ruled that the gag provision of the national security letter statute violated free speech rights protected by the First Amendment, noting that “democracy abhors undue secrecy.” In 2005, the ACLU also successfully challenged a gag order on a national security letter issued to Connecticut librarians for patron records. The FBI withdrew that national security letter altogether in June 2006.
The national ACLU and the ACLU of Michigan filed the Section 215 case in Detroit in July 2003 on behalf of advocacy and community groups from across the country whose members and clients believed they were the targets of investigations because of their ethnicity, religion or political associations. On October 2, 2006, Judge Denise Page Hood rejected the government’s motion to dismiss the case, noting that Section 215 had harmed the First Amendment rights of the plaintiff organizations. However, Judge Hood said she based her ruling on the original version of the law and did not consider the complaint in the context of the current, reauthorized version of the Patriot Act.
The case is Muslim Community Association of Ann Arbor v. Ashcroft and was filed on behalf of the Muslim Community Association, American-Arab Anti-Discrimination Committee, Arab Community Center for Economic and Social Services, Bridge Refugee and Sponsorship Services, Council on American-Islamic Relations and Islamic Center of Portland, Masjed As-Saber.
For more information on the ACLU’s ongoing challenge to the Patriot Act’s
national security letter provision, go to www.aclu.org/nsl.