In a major free-speech victory yesterday, a federal appeals court sided with the ACLU and struck down parts of the Patriot Act that allow the FBI to prevent national security letter (NSL) recipients from speaking out about secret record demands that strictly curtail judicial review of government-imposed gags.
The FBI uses NSLs to compel Internet service providers, libraries, banks, and credit reporting companies to turn over sensitive information about their customers and patrons. Through NSLs, the FBI can compile vast dossiers on innocent people and obtain personal information such as web sites a person visits, e-mail addresses to which a person has written, or even the identity of a person who has posted anonymous speech on a political website. The NSL statute allows the FBI to forbid or “gag” anyone who receives an NSL from telling anyone about the record demand.
Because NSLs can be issued without prior court approval and without probable cause, the FBI issues tens of thousands of NSLs every year. The Justice Department’s Inspector General has reported that between 2003 and 2006, the FBI issued nearly 200,000 NSLs. The Inspector General has also found serious FBI abuses of the NSL power. The gags that accompany NSL record demands have helped to keep the public in the dark about these abuses.
Although the NSL statute allowed recipients to challenge the gag orders, the scheme had some serious constitutional flaws. For example, the statute required the person gagged to go to court and show they should be allowed to speak. (The normal rule is that the government has to go to court and prove it has a compelling reason to silence you.) The statute also required the courts to defer almost entirely to the government’s claim that gags were necessary. In other words, the statute basically tied the courts’ hands and required judges to rubber stamp the gag orders.
Yesterday, the appeals court found that this scheme violated the First Amendment. The appeals court held that it is the government that must go to court and justify silencing NSL recipients. The appeals court also invalidated parts of the statute that narrowly limited judicial review of the gag orders. The court emphasized the importance of independent judicial review of executive branch gag orders, stating: “The fiat of a governmental official, though senior in rank and doubtless honorable in the execution of official duties, cannot displace the judicial obligation to enforce constitutional requirements. ‘Under no circumstances should the Judiciary become the handmaiden of the Executive.'” The appeals court also ruled that the government must now justify the gag on the John Doe NSL recipient in the case, a gag that has been in place for more than four years.
The ACLU originally filed this case in April 2004 on behalf of an Internet Service Provider (ISP) that received an NSL. Because the FBI imposed a gag order on the ISP, the lawsuit was filed under seal, and even today the ACLU is prohibited from disclosing its client’s identity. The FBI continues to maintain the gag order even though the underlying investigation is more than four years old and may well have ended, and even though the FBI abandoned its demand for records from the ISP over a year and a half ago.
After Judge Victor Marrero of the U.S. District Court for the Southern District of New York struck down the NSL statute in September 2004, Congress amended the NSL law. Soon thereafter, the ACLU brought a new challenge to the amended statute, and in September 2007 Judge Marrero again found the statute unconstitutional. The appeals court ruling yesterday upheld part of Judge Marrero’s September 2007 ruling.
In response to the decision yesterday, ACLU attorney Melissa Goodman stated:
We are gratified that the appeals court found that the FBI cannot silence people with complete disregard for the First Amendment simply by saying the words ‘national security. This is a major victory for the rule of law. The court recognized the need for judicial oversight of the government’s dangerous gag power and rejected the Bush administration’s position that the courts should just rubber-stamp these gag orders. By upholding the critical check of judicial review, the FBI can no longer use this incredible power to hide abuse of its intrusive Patriot Act surveillance powers and silence critics.”
Learn more about NSLs and the Patriot Act by downloading our Surveillance Society fact sheet.