Gagged National Security Letter Recipient Condemns Excessive Secrecy As Government Appeals His Case

November 5, 2007 12:00 am

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“John Doe” and ACLU Say Appeals Court Should Affirm Invalidation of Patriot Act Provision

NEW YORK – The U.S. government today appealed a New York federal court ruling striking down the National Security Letter (NSL) provision of the amended Patriot Act.

The appeal comes in a lawsuit brought by the American Civil Liberties Union and New York Civil Liberties Union on behalf of a still-anonymous Internet Service Provider (ISP). The ISP received an NSL demanding private information about a client and imposing a “gag order” preventing the ISP from disclosing its identity as the recipient of an NSL. NSLs are used to obtain access to subscriber, billing or transactional records from ISPs, to obtain a wide array of financial and credit documents, and even to obtain library records – all without prior judicial review.

A March 2007 report from the Justice Department’s Inspector General found serious abuses of the NSL power by the FBI. More recently, documents received by the ACLU in a Freedom of Information Act lawsuit revealed that the Department of Defense secretly issued hundreds of NSLs, suggesting an expanded military role in domestic surveillance.

In September, Judge Victor Marrero of the U.S. District Court for the Southern District of New York found that the gag provisions of the NSL statute were unconstitutional because they violated the First Amendment and the principle of separation of powers. Ruling that the gag provisions could not be severed from the remainder of the NSL statute, Judge Marrero struck down the entire statute. The court stayed enforcement of its ruling pending the government’s anticipated appeal, which the government filed today. The ISP plaintiff has been under a gag order now for more than three years.

The following can be attributed to “John Doe,” the President of the plaintiff ISP:

“Recent reports that the FBI and Defense Department have abused the NSL statutes only confirm my belief that the statutes give the government far too much power and that the secrecy surrounding the statutes is excessive and dangerous.

“Perhaps the most harmful consequence of the gag provisions is that they make it difficult or impossible for people like me – people who have firsthand experience with the NSL statute – to discuss their specific concerns with the public, the press, and Congress. This seems to be counterintuitive to everything I assumed about this country’s commitment to free speech and the value of political discourse.

“It has been especially frustrating to be operating under a gag order while Congress is considering whether to grant immunity to telecommunication companies that illegally disclosed information to the NSA. It is unfathomable to me that Congress is considering granting immunity to these companies that acted illegally while those who resisted illegal demands are prohibited even from identifying themselves or explaining their actions publicly.”

The following can be attributed to Jameel Jaffer, Director of the ACLU’s National Security Project:

“In striking down the NSL statute, the District Court properly concluded that the FBI cannot constitutionally be given the authority to determine, without judicial oversight, which NSL recipients should be permitted to speak and which should be silenced. We are confident that the appellate court will reach the same conclusion.”

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