FBI Continues To Use Gag Order To Suppress Key Information About National Security Letters

Affiliate: ACLU of New York
September 30, 2009 12:00 am

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Newly Public Documents Underline Need For NSL Reform As Congress Prepares For Patriot Act Markup On Thursday

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NEW YORK – The FBI continues to use the gag order provision of the Patriot Act’s national security letter (NSL) statute to suppress key information about the agency’s misuse of NSLs, according to legal documents recently made public in an American Civil Liberties Union case challenging the constitutionality of an NSL gag order.

Under the statute, the FBI can use NSLs to compel recipients, such as Internet service providers (ISPs), financial institutions and libraries to turn over sensitive information about innocent clients and subscribers, and then bar them from disclosing that they even received a record demand. According to the ACLU, by continuing to unconstitutionally enforce its five-year-old gag order on a John Doe NSL recipient and his ACLU attorneys, the FBI is suppressing key information that could help inform the ongoing congressional debate about the need to reform the NSL statute.

“The FBI’s misuse of its gag power continues to prevent NSL recipients like Doe – who have the best first-hand knowledge of the FBI’s use and abuse of NSL power – from participating in the Patriot Act debate in Congress,” said Melissa Goodman, staff attorney with the ACLU National Security Project. “The gag power has allowed the FBI to manipulate the debate, to suppress evidence of its misuse of the NSL power, and to deprive Congress and the public of important information it needs to inform whether these intrusive surveillance and gag powers should be reformed.”

The ACLU and New York Civil Liberties Union filed the lawsuit, now called Doe v. Holder, in April 2004 on behalf of an ISP that the FBI served with an NSL. A lower court ruled in 2007 that the gag order provisions were unconstitutional, and the U.S. Court of Appeals for the Second Circuit upheld that ruling in 2008. However, the FBI continues to enforce the gag order on the ISP even though the underlying investigation is more than five years old and even though the FBI abandoned its demand for records from the ISP more than three years ago.

One of the legal documents recently made public reveals that the FBI continues to use the gag order to prohibit the disclosure of an “attachment” to the NSL Doe received that, if disclosed, would show that the FBI tried to obtain records that it was not entitled to obtain under the NSL statute.

“These documents aren’t just troubling, they’re timely,” said Michael Macleod-Ball, Acting Director of the ACLU Washington Legislative Office. “The FBI’s abuse of the NSL gag order for its own protection further underlines the need for Patriot Act reform. With the Senate Judiciary Committee set to mark up a bill to amend the Patriot Act bill on Thursday, we can only hope this additional evidence of NSL misuse will convince committee members to narrow this overly broad FBI power.”

The NSL statute was greatly expanded in the Patriot Act, passed hastily by Congress in the days following 9/11. The Senate Judiciary Committee is scheduled to mark up a bill that would amend the Patriot Act and the NSL statute on Thursday. The bill, the USA PATRIOT Act Sunset Extension Act, would limit the narrow controversial statute and address other problematic provisions of the Patriot Act.

Attorneys in Doe v. Holder are Goodman, Jameel Jaffer and Larry Schwartztol of the ACLU and Arthur Eisenberg of the NYCLU.

More information about the case, including the newly public legal documents, is available online at: www.aclu.org/safefree/nationalsecurityletters/22023res20051130.html

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