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Court Rules Patriot Act’s ‘National Security Letter’ Gag Provisions Unconstitutional

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Court Rules Patriot Act’s “National Security Letter” Gag
Provisions Unconstitutional (12/15/2008)

ACLU Hails Victory In Challenge To Government’s Power To Silence NSL Recipients

FOR IMMEDIATE RELEASE
CONTACT: (212) 549-2666; media@aclu.org

NEW YORK — A federal appeals court today upheld, in part, a decision
striking down provisions of the Patriot Act that prevent national security letter
(NSL) recipients from speaking out about the secret records demands. The decision
comes in an American Civil Liberties Union and New York Civil Liberties Union
lawsuit challenging the FBI’s authority to use NSLs to demand sensitive and
private customer records from Internet Service Providers and then forbid them
from discussing the requests. Siding with the ACLU, the U.S. Court of Appeals
for the Second Circuit found that the statute’s gag provisions violate the First
Amendment.

“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,’” said Melissa Goodman, staff attorney with the
ACLU National Security Project. “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.”

The appeals court invalidated parts of the statute that wrongly placed the
burden on NSL recipients to initiate judicial review of gag orders, holding
that the government has the burden to 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 — provisions that required the
courts to treat the government’s claims about the need for secrecy as conclusive
and required the courts to defer entirely to the executive branch.

“The appellate panel correctly observed that the imposition of such a
conclusive presumption ignored well-settled First Amendment standards and deprived
the judiciary of its important function as a protector of fundamental rights,”
said Arthur Eisenberg, Legal Director for the New York Civil Liberties Union.

In this regard, the opinion stated: “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.”

The court, therefore, 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 and New York Civil Liberties Union filed this lawsuit 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.

In September 2004, Judge Victor Marrero of the U.S. District Court for the
Southern District of New York struck down the NSL statute, ruling that the FBI
could not constitutionally demand sensitive records without judicial review
and that permanent gag orders violated the First Amendment guarantee of free
speech. The government appealed the ruling, but Congress amended the NSL provision
before the court issued a decision.

The ACLU brought a new challenge to the amended provision, and in September
2007, Judge Marrero again found the statute unconstitutional.

Bills aimed at bringing the NSL authority back in line with the Constitution
were introduced last year in both the House and Senate after reports had confirmed
and detailed the widespread abuse of the authority by federal law enforcement.
Since the Patriot Act was passed in 2001, relaxing restrictions on the FBI’s
use of the power, the number of NSLs issued has seen an astronomical increase,
to nearly 200,000 between 2003 and 2006. A March 2008 Office of Inspector General
(OIG) report revealed that, among other abuses, the FBI misused NSLs to sidestep
the authority of the Foreign Intelligence Surveillance Court (FISC). In one
instance, the FBI issued NSLs to obtain information after the FISC twice refused
its requests on First Amendment grounds. The OIG also found that the FBI continues
to impose gag orders on about 97 percent of NSL recipients and that, in some
cases, the FBI failed to sufficiently justify why the gag orders were imposed
in the first place.

In addition to this case, the ACLU has challenged this Patriot Act statute
multiple times. One case was brought on behalf of a group of Connecticut librarians
and another case, called Internet Archive v. Mukasey, involved an NSL served
on a digital library in California. In the latter case, the FBI withdrew the
NSL and the gag as part of the settlement of a legal challenge brought by the
ACLU and the Electronic Frontier Foundation.

Attorneys in Doe v. Mukasey are Jameel Jaffer, Goodman and L. Danielle Tully
of the ACLU National Security Project and Eisenberg of the NYCLU.

Today’s decision can be found online at: www.aclu.org/safefree/nsaspying/38110lgl20081215.html

More information on Doe v. Mukasey and NSLs is available online at: www.aclu.org/nsl

Source URL: http://aclu.org/safefree/nsaspying/38113prs20081215.html


RELATED:

Court sides with ACLU, strikes down Patriot Act gag provision

12/16/2008
By Stephen C. Webster

ACLU victorious as federal court declares Patriot Act provision
a violation of the First Amendment

A federal appeals court ruling late Monday is the cause c?l?bre of the American
Civil Liberties Union, as another provision of the Bush administration’s Patriot
Act falls to the judicial system.

Until the ruling, recipients of so-called “national security letters”
were legally forbidden from speaking out. The letters, usually a demand for
documents, or a notice that private records had been searched by government
authorities, were criticized as a cover-all for FBI abuses.

“The appeals court invalidated parts of the statute that wrongly placed
the burden on NSL recipients to initiate judicial review of gag orders, holding
that the government has the burden to go to court and justify silencing NSL
recipients,” said the ACLU in a release. “The appeals court also invalidated
parts of the statute that narrowly limited judicial review of the gag orders
— provisions that required the courts to treat the government’s claims about
the need for secrecy as conclusive and required the courts to defer entirely
to the executive branch.”

Because of the ruling, the government will now be forced to justify individual
gag orders before a court, instead of casually wielding the power of a blanket
gag as the Bush administration has done since the blindingly fast passage of
the Patriot Act in Oct. 2001.

In Sept. 2007, a federal judge ruled unconstitutional provisions within the
Patriot Act which allowed the government to obtain search warrants without probable
cause.

Source URL: http://rawstory.com/news/2008/Court_sides_with_ACLU_strikes_down_1216.html