Reauthorized Patriot Act Still Unconstitutional, ACLU Says

Affiliate: ACLU of New York
August 7, 2006 12:00 am

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ACLU Returns to Court to Battle Controversial Surveillance Law

NEW YORK — The American Civil Liberties Union and the New York Civil Liberties Union announced today that they have returned to court to challenge the constitutionality of the reauthorized Patriot Act’s National Security Letter (NSL) provision. The provision permits the FBI to prohibit anyone who receives an NSL from disclosing that the FBI has sought or obtained information from them.

“The secrecy surrounding the FBI’s use of national security letters is excessive and dangerous,” said Jameel Jaffer, the ACLU lawyer who is lead counsel in the case. “By permitting the FBI to operate without meaningful public or judicial oversight, Congress has undermined important safeguards against abuse.”

The ACLU filed the case in April 2004 on behalf of an Internet Service Provider that had received an NSL and was prohibited from disclosing that the FBI had sought information from it. In September 2004, the district court struck down the NSL provision as unconstitutional, with Judge Victor Marrero writing that “democracy abhors undue secrecy.” In his landmark ruling, Judge Marrero held that indefinite gag orders imposed under the NSL law violate free speech rights protected by the First Amendment.

The government appealed the decision to the Second Circuit Court of Appeals, and oral argument was heard in November 2005. Before the court issued a decision, however, Congress amended the NSL provision. In May 2006, the appeals court issued a ruling asking the district court to consider the constitutionality of the amended law. In a concurring opinion, Judge Richard Cardamone strongly criticized the government for continuing to argue that a permanent ban on speech would be permissible under the First Amendment.

“A ban on speech and a shroud of secrecy in perpetuity are antithetical to democratic concepts and do not fit comfortably with the fundamental rights guaranteed American citizens,” wrote Judge Cardamone. “Unending secrecy of actions taken by government officials may also serve as a cover for possible official misconduct and/or incompetence.”

Judge Cardamone added that national security concerns “should be leavened with common sense so as not forever to trump the rights of the citizenry under the Constitution.”

The Internet Service Provider is still gagged and is identified as “John Doe” in the legal papers made public today. The legal papers were originally filed under seal because of the gag provision, and redacted versions were made available today under procedures put in place by the court.

In its legal papers, the ACLU argues that the gag provision, which is still present in the amended NSL statute, violates the First Amendment by giving the FBI the authority to suppress speech without prior judicial review. The ACLU also argues that the provision is unconstitutional because, while it permits courts to review gag orders after they are issued, the provision requires courts to defer to the FBI’s view that secrecy is necessary.

The ACLU said that the gag provision has had significant effects on the John Doe plaintiff. John Doe was prevented from participating in the contentious Patriot Act reauthorization debate that raged across the nation in late 2005 and early 2006. Even though it had firsthand knowledge of this sweeping FBI power, the gagged Internet Service Provider could not mention the fact that it had received an NSL, divulge the breadth of the letter, or discuss the ramifications on its business relationships. According to news reports, the government now issues 30,000 NSLs every year.

“The Patriot Act dramatically expanded the FBI’s authority to monitor the communications and activities of people living in the United States,” said Jaffer. “Yet by permitting the FBI to silence those with direct experience of the new laws, Congress has denied the public any means of ensuring that the new surveillance authorities are being used lawfully and responsibly.”

In a similar case, the ACLU represented four librarians who are on the board of Library Connection, a library consortium in Connecticut. The consortium was served with a NSL and challenged both the letter and the accompanying gag. After many months of litigation, the government withdrew its demand for information and abandoned the gag order.
Last week, the Supreme Court ordered that legal documents in the case sealed by the government and the courts be made public. The documents revealed that government attorneys had censored, among other non-sensitive information, whole newspaper articles and direct quotes from Supreme Court opinions that undercut the government’s arguments in the case.

A copy of the redacted complaint made public today is online at

More information about this case is available at

Attorneys in the case are Jaffer, Ann Beeson and Melissa Goodman of the ACLU, and Arthur Eisenberg of the New York Civil Liberties Union.

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