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Obama Administration Will Not Ask Supreme Court to Review Gag Order Decision

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May 18, 2009

The government had a deadline last Thursday. That was the last day the government could ask the Supreme Court to review an appeals court ruling striking down parts of the Patriot Act that allow the FBI to impose unconstitutional gag orders on National Security Letters (NSL) recipients. The deadline has now passed, and the government has confirmed that it will not ask the Supreme Court to review this important NSL decision.

Hooray! This means that FBI gag orders will finally be subject to meaningful judicial review. Judicial review of FBI gag orders will also put a much-needed check on abuse of this intrusive surveillance and gag power.

The ACLU’s National Security Project filed this lawsuit back in 2004. Our client is an Internet Service Provider (ISP) that the FBI served with an NSL. The NSL demanded sensitive subscriber information. The NSL also included a gag order that prohibited the ISP from disclosing — to anyone — that the FBI had demanded information from it. The NSL recipient (John Doe) remains gagged and the ACLU is still prohibited from disclosing its client’s identity. In 2007, a district court found the gag order provisions of the NSL statute unconstitutional. Last December, the Second Circuit Court of Appeal upheld that ruling.

Now that the government has decided not to seek Supreme Court review, it next has to defend to a judge the constitutionality of the gag order on John Doe. The FBI continues to enforce the gag order even though the underlying investigation is more than five years old and may well have ended, and even though the FBI abandoned its demand for records from the ISP more than two years ago. At this point, it seems hard to believe that the government can justify this gag with a straight face.

So stay tuned. FBI: we’ll see you in court!

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