NEW YORK - After more than two years in a legal battle with the American Civil Liberties Union, the FBI has abandoned a Patriot Act demand for the subscriber records of a small Internet Service Provider. The ACLU welcomed the decision but criticized the FBI for refusing to lift a gag order that prevents the provider from disclosing its identity.
"We're pleased with the FBI's decision to abandon its demand for sensitive information about our client's subscribers, though of course we would have liked the FBI to abandon this dubious demand many months ago," said Jameel Jaffer, lead attorney in the case and Deputy Director of the ACLU's National Security Program. "We will continue to challenge the gag provision that silences our client and allows the FBI the unreviewable authority to silence anyone else served with a 'national security letter.'"
The FBI announced that it is dropping its national security letter in legal papers made public today. The Internet Service Provider is still gagged and is identified as "John Doe" in the court documents.
Today's action is the second time the FBI has withdrawn a national security letter after being forced to defend its demand in court. In another high profile case, the FBI dropped its demand in June for the patron records of a Connecticut library consortium. In that case, however, the FBI also dropped the gag that would have prevented the librarians from speaking publicly about the demand. The ACLU questioned why the FBI is insisting on maintaining the gag in the New York case.
"The FBI came under a great deal of public scrutiny once the Connecticut librarians were able to speak publicly, and it appears the government wants to avoid a similar situation," said Ann Beeson, Associate Legal Director of the ACLU. "We have learned from experience that the government routinely abuses its power to invoke secrecy to silence opposition, rather than protect national security."
The national security letter provision of the Patriot Act allows the government to demand, without court approval, records of people who are not suspected of any wrongdoing. Anyone who receives such a demand is prohibited from disclosing even the mere existence of the request. According to news reports, the government issues 30,000 national security letters every year.
The ACLU said that the gag provision has had significant effects on the John Doe Internet Service Provider. Because of the gag, for example, 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, Doe could not disclose the fact that the FBI had served it with a national security letter, divulge the breadth of the letter, or discuss the ramifications on its business relationships.
The ACLU filed the case on behalf of the Internet Service Provider in April 2004. In September 2004, the district court struck down the Patriot Act provision as unconstitutional, with Judge Victor Marrero writing that "democracy abhors undue secrecy." In his landmark ruling, Judge Marrero held that indefinite gag orders imposed under the national security letter law violate free speech rights protected by the First Amendment.
The government appealed the decision to the Second Circuit Court of Appeals, but before the court issued a decision, Congress amended the Patriot Act provision. In May 2006, the appeals court issued a ruling asking 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.
"A ban on speech and a shroud of secrecy in perpetuity are antithetical to democratic concepts and do not fit comfortably with the fundamental rights guaranteed American citizens," wrote Judge Cardamone. "Unending secrecy of actions taken by government officials may also serve as a cover for possible official misconduct and/or incompetence."
The New York case is Doe v. Gonzales. Attorneys in the case are Jaffer, Beeson and Melissa Goodman of the national ACLU and Arthur Eisenberg of the New York Civil Liberties Union.
For more information on this case, including legal documents and an affidavit from John Doe, go to www.aclu.org/safefree/nationalsecurityletters/22023res20051130.html
For information on national security letters, go to www.aclu.org/nsl