Patriot Act's National Security Letter Gag Provisions Ruled Unconstitutional
Andrew Albanese -- Library Journal, 12/16/2008
- ACLU: ruling a "major" victory
- Case at heart still gagged by FBI
- Ruling affirms 2004 verdict
| Go back to the Academic Newswire for more stories |
A federal appeals court this week upheld a decision striking down the so-called “gag order” provision of the USA Patriot Act, which barred recipients of National Security Letters (NSLs) from speaking out. The decision comes in an American Civil Liberties Union (ACLU) and New York Civil Liberties Union lawsuit filed in April 2004 on behalf of an unnamed Internet Service Provider (ISP) that had received an NSL. Ironically, the suit is subject to an FBI gag order—the lawsuit was filed under seal—and the ACLU remains prohibited from disclosing its client’s identity.
Of particular note in its ruling, the appeals court invalidated parts of the Patriot Act that 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 fiat of a governmental official,” reads the opinion, “cannot displace the judicial obligation to enforce Constitutional requirements. Under no circumstances should the Judiciary become the handmaiden of the Executive.” Melissa Goodman, staff attorney with the ACLU National Security Project, said the ruling was “a major victory.”
Upon review
In September 2004, Judge Victor Marrero of the U.S. District Court for the Southern District of New York, first 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.
In March, 2008, an Inspector General’s (OIG) report revealed widespread abuses of 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 has 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—including the case on behalf of a group of Connecticut librarians, and another, Internet Archive v. Mukasey, which involved an NSL served on Brewster Kahle’s vast digital library in California. This week Kahle and the Internet Archive were recognized with the Downs Intellectual Freedom Award for their resistance.
Read more Newswire stories:
ARL/ASERL Task Force to Investigate OCLC Policy Change
Obama "Softening" on Net Neutrality? Google, Lessig Slam WSJ Report
Brewster Kahle, Internet Archive Win 2008 Downs Intellectual Freedom Award
Green in 2008: LJ’s Annual Architectural Issue Out Now
People
