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National Security Letters
Reauthorized Patriot Act Still Unconstitutional, ACLU Says (8/7/2006)
FOR IMMEDIATE RELEASE:
CONTACT: media@aclu.org
ACLU Returns to Court to Battle Controversial Surveillance Law
NEW YORK -- The American Civil Liberties Union and the New York Civil
Liberties Union announced today that they have returned to court to challenge
the constitutionality of the reauthorized Patriot Act's National Security Letter
(NSL) provision. The provision permits the FBI to prohibit anyone who receives
an NSL from disclosing that the FBI has sought or obtained information from
them.
"The secrecy surrounding the FBI's use of national security letters is
excessive and dangerous," said Jameel Jaffer, the ACLU lawyer who is lead
counsel in the case. "By permitting the FBI to operate without meaningful public
or judicial oversight, Congress has undermined important safeguards against
abuse."
The ACLU filed the case in April 2004 on behalf of an Internet
Service Provider that had received an NSL and was prohibited from disclosing
that the FBI had sought information from it. In September 2004, the district
court struck down the NSL 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 NSL law violate
free speech rights protected by the First Amendment.
The government appealed
the decision to the Second Circuit Court of Appeals, and oral argument was heard
in November 2005. Before the court issued a decision, however, Congress amended
the NSL 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."
Judge
Cardamone added that national security concerns "should be leavened with common
sense so as not forever to trump the rights of the citizenry under the
Constitution."
The Internet Service Provider is still gagged and is
identified as "John Doe" in the legal papers made public today. The legal papers
were originally filed under seal because of the gag provision, and redacted
versions were made available today under procedures put in place by the court.
In its legal papers, the ACLU argues that the gag provision, which is still
present in the amended NSL statute, violates the First Amendment by giving the
FBI the authority to suppress speech without prior judicial review. The ACLU
also argues that the provision is unconstitutional because, while it permits
courts to review gag orders after they are issued, the provision requires courts
to defer to the FBI's view that secrecy is necessary.
The ACLU said that the
gag provision has had significant effects on the John Doe plaintiff. 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 it
had firsthand knowledge of this sweeping FBI power, the gagged Internet Service
Provider could not mention the fact that it had received an NSL, divulge the
breadth of the letter, or discuss the ramifications on its business
relationships. According to news reports, the government now issues 30,000 NSLs
every year.
"The Patriot Act dramatically expanded the FBI's authority to
monitor the communications and activities of people living in the United
States," said Jaffer. "Yet by permitting the FBI to silence those with direct
experience of the new laws, Congress has denied the public any means of ensuring
that the new surveillance authorities are being used lawfully and responsibly."
In a similar case, the ACLU represented four librarians who are on the board
of Library Connection, a library consortium in Connecticut. The consortium was
served with a NSL and challenged both the letter and the accompanying gag. After
many months of litigation, the government withdrew its demand for information
and abandoned the gag order.
Last week, the Supreme Court ordered that legal
documents in the case sealed by the government and the courts be made public.
The documents revealed that government attorneys had censored, among other
non-sensitive information, whole newspaper articles and direct quotes from
Supreme Court opinions that undercut the government’s arguments in the
case.
A copy of the redacted complaint made public today is online at
www.aclu.org/safefree/nationalsecurityletters/26402lgl20060807.html
More
information about this case is available at
www.aclu.org/nsl
Attorneys in the case
are Jaffer, Ann Beeson and Melissa Goodman of the ACLU, and Arthur Eisenberg of
the New York Civil Liberties Union.
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