While misuse and abuse of the NSL power has been widely documented, the Obama administration is now seeking to expand the statute to allow the FBI to demand even more records without court approval. In July, the Obama administration proposed to expand the statute to allow the FBI to get American's internet activity records without court approval or even suspicion of wrongdoing.
In 2004, the ACLU filed a lawsuit challenging the FBI's authority to demand records through NSLs and to gag NSL recipients from discussing record demands. The suit — the first of its kind — was brought on behalf of a "John Doe" Internet Service Provider that had been served with an NSL and had been prohibited from disclosing — to anyone — that the FBI had demanded records. The lawsuit resulted in numerous court rulings finding parts of the NSL statute unconstitutional. As a result of a settlement agreement, the ACLU's "John Doe" client Nicholas Merrill is finally able to publicly identify himself and his former company as the plaintiffs in the case.
Timeline
April 2004: ACLU files a lawsuit in the U.S. District Court for the Southern District of New York on behalf of "John Doe."
September 2004: District court rules that the NSL statute is unconstitutional under the First and Fourth Amendments.
March 2006: With the government appeal of district court's September 2004 decision pending, Congress amends the NSL statute, remedying some of its problems but worsening others. In particular the statute's gag provisions were made even more oppressive.
May 2006: The appeals court sends case back to the district court to consider the constitutionality of the amended gag provisions.
September 2007: After ACLU returns to court to challenge the amended gag provision, the district court strikes down the entirety of the NSL provisions of the Patriot Act, ruling that the NSL statute's gag provisions violate the First Amendment and the principle of separation of powers.
December 2008: The appeals court upholds the district court's September 2007 decision in part, finding the portions of the statute violate the First Amendment. The appeals court also rules that the government must justify the more than four-year long gag on the "John Doe" NSL recipient in the case.
August 2009: After the government attempts to justify the continuation of the gag on Doe by filing secret documents with the court (which not even Doe's lawyers had any access to) the court orders the government to partially disclose its secret filing and to release a public summary of its evidence.
October 2009: District court rules that the government can continue to enforce the five-year-old gag order on Doe and that the FBI can continue to suppress an "attachment" to the NSL Doe received.
November 2009: ACLU files motion for reconsideration with respect to the continued suppression of an attachment to the NSL Doe received.
March 2010: Court orders government to release a less-redacted version of attachment to NSL issued to John Doe but rules that the government can continue to suppress certain information about the types of records the FBI demanded - information that would show the FBI's abuse of the NSL power. In response to court order, government releases less-redacted version of NSL.
August 2010: As a result of a settlement in the case, the FBI lifts the gag on Nick Merrill, the ACLU's client and the first NSL recipient to challenge the records demand.
PUBLIC VERSION OF NSL ISSUED TO JOHN DOE
> Redacted Version of NSL (updated 03/26/10)
LEGAL DOCUMENTS
DISTRICT COURT DOCUMENTS (2009-2010)
> Order to Release Less-Redacted Version of NSL (3/18/2010)
> ACLU Brief in Opposition to Continued Suppression of NSL Attachment (2/5/2010)
> Government’s Brief in Support of Continued Suppression of NSL Attachment (1/19/2010)
> Summary of Declaration of Arthur Cummings (1/15/2010)
> Declaration of Arthur Cummings (1/13/2010)
> ACLU Reply Memorandum in Support of Motion to Reconsider (12/1/09)
> Government's Memorandum in Opposition to Motion to Reconsider (11/18/09)
> ACLU Motion to Reconsider (11/10/09)
> ACLU Memorandum in Support of Motion to Reconsider (11/10/09)
> Decision and Order (10/20/2009)
> Government Brief in Support of Continuation of NSL Gag Order (9/11/2009)
> ACLU Brief in Opposition to Continuation of NSL Gag Order (8/21/2009)
- Declaration of Melissa Goodman (8/21/2009)
- Third Declaration of John Doe (8/21/2009)
> Unclassified Summary of Government's Secret Evidence (8/5/2009)
> Redacted Government Classified Declaration (8/5/2009)
> Judge's Order Requiring Government to Partially Disclose Sealed Filing (8/4/2009)
> Plaintiffs' Reply in Support of Motion for Access (7/13/2009)
> Government's Opposition to Motion for Access (7/8/2009)
> ACLU Motion for Access to Secret Evidence (6/24/2009)
> ACLU Memo in Support of Motion for Access to Secret Evidence (6/24/2009)
> Govt. Letter to Judge Marrero (6/17/2009)
> Govt. Declaration (6/24/2009)
APPEALS COURT DOCUMENTS (2008)
> Doe v. Mukasey - Decision (12/15/2008)
> Government's Reply Brief (4/8/2008)
> ACLU Brief in Second Circuit (3/10/2008)
> Government Brief (2/8/2008)
DISTRICT COURT DOCUMENTS (2006–2007)
> Opinion Decision and Order (9/6/2007)
> Reply in Opposition to Plaintiffs' Motion for Partial Summary Judgement (2/5/2007)
> Reply in Support of Plaintiffs' Motion for Partial Summary Judgement (12/15/2006)
> Government Opposition to Summary Judgment (11/8/2006)
> Declaration of Jeffrey Oestericher (11/8/2006)
> ACLU Petition to Set Aside Demand for Records (9/8/2006)
> ACLU Brief in Support of Partial Summary Judgment (9/8/2006)
> Second Declaration of John Doe (9/8/2006)
> Third Declaration of Ann Beeson (9/8/2006)
> 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)
> ACLU Motion for Partial Summary Judgment (9/8/2006)
> Second Amended Complaint (7/24/2006)
APPEALS COURT DOCUMENTS (2005–2006)
> 2nd Circuit Decision in Doe v. Gonzales (5/23/2006)
> ACLU Supplemental Brief (4/10/2006)
> Government Supplemental Brief (3/29/2006)
> Reply Brief for the Government (8/26/2005)
> Brief for the ACLU and Doe (7/25/2005)
> Brief for the Government (5/24/2005)
> Amicus Briefs
> EFF, et. al.
> AAUP, et. al.
> National Security Archive, et. al.
> New York City Bar Association
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)
> 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
> 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
> Plaintiffs' Motion for Summary Judgment (5/17/2004)
> Memo in Support of Plantiff's 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.