Challenge to National Security Letter Authority

September 29, 2004
Challenge to National Security Letter Authority

Challenge to the "National Security Letter" Authority

In April 2004, the American Civil Liberties Union and an anonymous Internet Service Provider (ISP) filed a lawsuit challenging the FBI's authority to issue "National Security Letters" (NSLs) ordering certain kinds of businesses to turn over sensitive customer records. Before the Patriot Act, the FBI could use NSLs to obtain records concerning suspected terrorists and spies. The Patriot Act amended the law to allow the use of NSLs to obtain information about anyone at all.

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The ACLU's legal challenge argues that the amended law violates the First and Fourth Amendments because it does not impose adequate safeguards on the FBI's authority to force disclosure of sensitive and constitutionally protected information. The lawsuit also challenges the constitutionality of the statute's gag provision, which prohibits anyone who receives an NSL from disclosing even the mere fact that the FBI has sought information.

Because of the gag provision, the ACLU was forced to file the case under seal; it was three weeks before the ACLU could announce that it had challenged the law. The government continues to insist that the gag provision prohibits the ISP plaintiff from disclosing its name.

In September 2004, Judge Victor Marrero of the Southern District of New York issued a landmark decision striking down the NSL statute and the associated gag provision. In striking down the gag provision, Judge Marrero wrote: "Democracy abhors undue secrecy. . . . [A]n unlimited government warrant to conceal, effectively a form of secrecy per se, has no place in our open society."

The government has said it will appeal Judge Marrero's decision. Accordingly, the case is likely to be before the United States Court of Appeals for the Second Circuit in early 2005.

REPORT: Dangers of Government Gag Revealed

NEW! Redacted documents released by the ACLU March 7, 2005 (pdf)
> Letter from the Department of Justice (5/27/04)
> Letter from the ACLU (5/25/04)
> Amended Complaint for Declaratory and Injunctive Relief
Declaration
> FBI Declaration
> Plaintiffs' Reply
> Declaration of Anthony D. Romero, ACLU Executive Director

SUMMARIES AND ANALYSIS
> Decision
> Plaintiffs' Reply And Opposition To The Government's Cross-Motion To Dismiss Or For Summary Judgment
> Plaintiffs' Responsive Statement Of Undisputed Facts

DECLARATIONS AND EXHIBITS IN SUPPORT OF PLAINTIFFS' REPLY AND OPPOSITION
> Second Declaration Of Ann Beeson And Beeson Exhibits 1-16
> Plaintiffs' Motion to Exclude Government's Ex Parte Declaration
> Plaintiffs' Motion for Summary Judgment
> Memorandum in Support of Plaintiffs' Motion for Summary Judgment
> Statement of Undisputed Facts in Support of Plaintiffs' Motion for Summary Judgment

DECLARATIONS AND EXHIBITS IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
> Declaration of John Doe and Doe Exhibit
> Declaration of Simson Garfinkel and Garfinkel Exhibit
> Declaration of Anthony Romero and Romero Exhibits 1-3
> Declaration of Ann Beeson and Beeson Exhibits 1-6
> Beeson Declaration Exhibits 7-13

AMICUS BRIEFS
> EFF, et al.
> ALA, et al.
> Amended Complaint

GAG ORDER DISPUTES
> Court Order On Sealing Procedures (May 12, 2004)
> Government Letter to Judge Admitting Inadvertent Disclosure of Redacted Words (July 13, 2004)
> ACLU Letter to Judge Disputing Redactions in Summary Judgment Documents (June 2, 2004)
> Government Letter to Judge Defending Redactions in Plaintiffs' Summary Judgment Documents (May 27, 2004)
>
Second Government Letter to Judge Defending Redactions (May 14, 2004)
> ACLU Letter Disputing Government Redactions (May 14, 2004)
> Government Letter To Judge Defending Redactions (May 12, 2004)
> Government Letter to Judge Opposing Plaintiffs' Proposal for Disclosure (May 7, 2004)
> ACLU Letter to Judge Requesting Amendment of Sealing Order and Proposing Disclosure Procedures (May 6, 2004)
> ACLU Letter to Judge Clarifying Motion to Unseal Request(April 30, 2004)
> Second Government Letter To Judge Regarding Content On ACLU Website (April 30, 2004)
> ACLU Memorandum In Support Of Motion To Unseal Case (April 30, 2004)
> ACLU Letter To Judge Regarding Content On ACLU Website(April 30, 2004)
> Government Letter To Judge Demanding Removal Of Content From ACLU Website (April 29, 2004)
> Joint Letter To Judge To Unseal Portions Of The Complaint (April 26, 2004)
> Motion for Leave to File Case Under Seal (April 6, 2004)

PRESS RELEASES
> ACLU Blasts Justice Department's Attempts to Manipulate Truth About Patriot Act Ruling(Oct. 1, 2004)
> In ACLU Case, Federal Court Strikes Down Patriot Act Surveillance Power As Unconstitutional(Sept. 29, 2004)
> Government Is Suppressing Information About Controversial Patriot Act Powers(Aug. 19, 2004)
> New Documents Unsealed in ACLU and NYCLU Patriot Act Challenge(May 25, 2004)
> Judge Revises Sealing Order in Controversial Patriot Act Challenge (May 12, 2004)
> ACLU Discloses Documents in Extraordinary Sealed Challenge to Patriot Act Spying Power (April 28, 2004)

MATERIALS ABOUT NATIONAL SECURITY LETTERS OBTAINED THROUGH FOIA LITIGATION
> Form National Security Letter
> List of National Security Letters issued by FBI Oct. 26, 2001 to Jan. 21, 2003
> Memo discussing FBI power to issue National Security Letters

PRELATED PATRIOT ACT LITIGATION AND ADVOCACY
> Lawsuit Challenging Section 215
> FOIA litigation about Patriot Act surveillance
> Litigation on Expanded Wiretaps Before the Foreign Intelligence Surveillance Court
> Other ACLU Advocacy to Oppose Excessive Government Secrecy

PUBLICATIONS
> Unpatriotic Acts: The FBI's Power to Rifle Through Your Records Without Telling You
> Freedom Under Fire: Dissent in Post-9/11 America
> Insatiable Appetite: The Government's Demand for Unnecessary Powers After Sept. 11

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