There has never been a more urgent need to preserve fundamental privacy protections and our system of checks and balances than the need we face today, as illegal government spying, provisions of the Patriot Act and government-sponsored torture programs transcend the bounds of law and our most treasured values in the name of national security.
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. The court once again ruled in the ACLU's favor, finding that the NSL statute violated the First Amendment and the principle of separation of powers. The government's appeal is pending before the Second Circuit.
