Overturn of Patriot Act’s Gag Order Upheld, in Part

Overturn of Patriot Act’s Gag Order Upheld, in Part

A federal appeals court ruled unanimously December 15 that it is unconstitutional to gag recipients of a National Security Letter from discussing its receipt unless disclosure might interfere with “an authorized investigation to protect against international terrorism or clandestine intelligence activities.” The decision (PDF file) in Doe v. Mukasey by the 2nd U.S. Circuit Court of Appeals upheld a September 2007 district court ruling, although the appeals court narrowed the circumstances under which the FBI can enjoin a provider of internet access, interpreted as including libraries, from revealing the receipt of a National Security Letter demanding the e-mail addresses and websites accessed by one or more users.

Appeals court Judge Jon O. Newman agreed with the lower court that a nondisclosure orders restrains the recipient “from publicly expressing a category of information, albeit a narrow one, and that information is relevant to intended criticism of a governmental activity” and found it irrelevant that an NSL recipient “did not intend to speak and was not subject to any administrative restraint on speaking prior to the government’s issuance of an NSL.” Judge Newman differed, however, on how much judicial oversight the issuance of NSLs should have. However, the appeals court overturned a district court ruling that the FBI get court approval for every NSL before it is issued. Agreeing with the Justice Department that most recipients would not challenge an NSL, Judge Newman suggested that one means of keeping the NSL provision of the Patriot Act constitutional was for the FBI to inform each recipient of their right to challenge the gag order. He stated that it was reasonable for recipients to remain gagged unless a court were to lift the nondisclosure requirement.

American Library Association President Jim Rettig hailed the ruling as “protect[ing] our First Amendment freedoms by placing reasonable limitations on the FBI’s ability to impose a gag order when issuing National Security Letters” as well as “requiring meaningful judicial review when an NSL gag order is challenged”—a process that stretched to 18 months for four Connecticut librarians who successfully fought the NSL they received in 2005. However, he also expressed concern that the decision “does not address the constitutionality of the FBI’s use of NSLs to obtain an individual’s personal data.”

ALA and its Freedom to Read Foundation were among the groups filing amicus curiae briefs on behalf of the plaintiffs.

Posted on December 17, 2008. Discuss.