Gagged A federal judge in New York today struck a fatal blow to the Patriot Act provision authorizing national security letters. The ACLU, which brought the lawsuit, reports:

The law has permitted the FBI to issue NSLs demanding private information about people within the United States without court approval, and to gag those who receive NSLs from discussing them. The court found that the gag power was unconstitutional and that because the statute prevented courts from engaging in meaningful judicial review of gags, it violated the First Amendment and the principle of separation of powers.

The case is Doe v. Gonzales and the 106 page opinion is available here (pdf). You can see a copy of a national security letter here (pdf).

This is an important decision. National Security letters are not just used to get records of suspected terrorists and they have a tremendous potential for abuse.

NSLs may be used to obtain access to subscriber, billing or transactional records from Internet service providers; to obtain a wide array of financial and credit documents; or even to obtain library records. In almost all cases, recipients of NSLs are forbidden, or “gagged,” from disclosing that they have received the letters, even to close family and friends. This has been a severe hardship on NSL recipients, who not only have been forced to keep this major event secret, but who have been prevented from meaningfully participating in public discussions about NSLs. The court today held that because the gag provisions cannot be separated from the entire amended statute, the court was compelled to strike down the entire statute.

In other words, since the individual receiving the request for records is “gagged,” i.e., not permitted to disclose receipt of the letter, he or she can’t challenge it, even in a court of law. That results in no judicial oversight.

“Without oversight, there is nothing to stop the government from engaging in broad fishing expeditions, or targeting people for the wrong reasons, and then gagging Americans from ever speaking out against potential abuses of this intrusive surveillance power.”

In 2005, Barton Gellman of the Washington Post wrote a terrific article on National Security Letters.

I’ll quote just a few paragraphs to answer the questions, What’s a national security letter? What oversight is there? What kinds of information does it demand? Aren’t they just used to nab terrorists?

Issued by FBI field supervisors, national security letters do not need the imprimatur of a prosecutor, grand jury or judge. They receive no review after the fact by the Justice Department or Congress. The executive branch maintains only statistics, which are incomplete and confined to classified reports. The Bush administration defeated legislation and a lawsuit to require a public accounting, and has offered no example in which the use of a national security letter helped disrupt a terrorist plot.

….The records it gathers describe where a person makes and spends money, with whom he lives and lived before, how much he gambles, what he buys online, what he pawns and borrows, where he travels, how he invests, what he searches for and reads on the Web, and who telephones or e-mails him at home and at work.

The letters do not just collect records of suspected terrorists. Since the Patriot Act was enacted, they can get your records or mine fairly easily.

Under the old legal test, the FBI had to have “specific and articulable” reasons to believe the records it gathered in secret belonged to a terrorist or a spy. Now the bureau needs only to certify that the records are “sought for” or “relevant to” an investigation “to protect against international terrorism or clandestine intelligence activities.” That standard enables investigators to look for conspirators by sifting the records of nearly anyone who crosses a suspect’s path.

Gellman reported that the FBI had increased the number of national security letters it issued by one hundred fold, to 30,000 letters a year. A March 2007 report by the Justice Department’s Office of Inspector General found that number to be a vast understatement — the actual number of data requests between 2003 and 2005 was 143,000. The OIG report also found 3,000 violations by the FBI.

For much more on national security letters, EPIC has a webpage devoted to them. Another interesting read is this anonymous letter from the recipient of a national security letter published in the Washington Post.

The Government surely will appeal Judge Marrero’s ruling to the Second Circuit Court of Appeals. In the meantime, let’s all savor the victory.

Jeralyn Merritt

Jeralyn Merritt

Jeralyn is a Denver-based criminal defense attorney. She writes daily at TalkLeft: the Politics of Crime .