U.S. Court of Appeals Restricts Patriot Act Gags


NEW YORK, NY, December 18, 2008 – The U.S. Court of Appeals for the Second Circuit on Tuesday established important restrictions on the power of the federal government to impose gag orders on recipients of National Security Letters (NSLs). Currently, the recipient of an NSL cannot challenge a gag order for one year, and the chances for success are limited by a provision of the law that requires judges to regard as “conclusive” government assertions that secrecy is necessary to protect national security. The Second Circuit ruled that these provisions limit First Amendment rights. “The NSL ruling is an important step toward reestablishing the First Amendment rights that the Patriot Act took away,” ABFFE President Chris Finan said.

ACLU has challenged several NSLs, including one issued to a consortium of Connecticut libraries. An NSL is an order that the FBI uses to obtain electronic records from telephone companies, Internet service providers (ISPs) and anyone else who provides the public with access to the Internet, including libraries and bookstores. The FBI does not need a judge’s approval to issue an NSL. It issued nearly 200,000 in the four-year period from 2003 through 2006.

The Second Circuit case involves a challenge to the government’s power to gag an ISP that received an NSL. ACLU argued it is difficult if not impossible for the ISP to challenge this restriction on its First Amendment right to comment publicly on the case. The Second Circuit agreed. It ruled that in the future the FBI must seek judicial approval for a gag at the request of a recipient. The court also ruled that it will not be sufficient for the FBI to declare that the gag is necessary for national security: it must provide a judge with good reasons for maintaining the gag.

The decision is available at http://www.aclu.org/pdfs/safefree/doevmukasey_decision.pdf

ABFFE joined the American Library Association, the Association of American Publishers, the American Association of University Professors, the Freedom to Read Foundation and PEN American Center in filing an amicus brief in the case. It is available at http://www.abffe.com/NSL%20Brief%20Second%20Circuit%203-17-08.pdf