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Court sides with ACLU, strikes down Patriot Act gag provision
RAW
STORY
Tuesday, Dec 16, 2008
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 célèbre
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."
(ARTICLE CONTINUES BELOW)
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.
The ACLU's complete press release follows.
####
FOR IMMEDIATE RELEASE
December 15, 2008
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
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