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.
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