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Patriot Act???s National Security Letter Gag Provisions Choke on First Amendment Grounds

By Marc Randazza

The Second Circuit Court of Appeals struck down one of the most constitutionally repugnant provisions of the PATRIOT Act -- the portions of the Act that place recipients of so-called "national security letters" (NSLs) under a permanent, unreviewed, lifetime gag order. See Doe v. Mukasey, __ F.3d __ (2d. Cir. 2008).

Through NSLs the FBI can compile vast dossiers about innocent people and obtain sensitive information such as the web sites a person visits, a list of e-mail addresses with which a person has corresponded, or even unmask the identity of a person who has posted anonymous speech on a political website. The provision also allows the FBI to forbid or "gag" anyone who receives an NSL from telling anyone about the record demand. Since the Patriot Act was authorized in 2001, further relaxing restrictions on the FBI's use of the power, the number of NSLs issued has seen an astronomical increase. The Justice Department's Inspector General has reported that between 2003 and 2006, the FBI issued nearly 200,000 NSLs. The inspector General has also found serious FBI abuses of the NSL power. (source)

Doe v. Mukasey deals with an internet service provider challenging the NSL provisions, but NSLs have also been used against librarians and the internet archive. The service provider received an NSL requiring disclosure of information pertaining to one of its customers along with an order that neither the contents of, nor the very existence of, the letter could be revealed. The service provider claimed that the gag order constituted an unlawful prior restraint. Prior restraints are ???the most serious and the least tolerable infringement on First Amendment rights,??? Nebraska Press Ass???n v. Stuart, 427 U.S. 539, 559 (1976). ???Any prior restraint on expression comes to [a court] with a heavy presumption against its constitutional validity,??? Organization for a Better Austin v. Keefe, 402 U.S. 15, 419 (1971).

The Second Circuit held that the gag orders were unconstitutional, but only to the extent that they were issued without proper judicial review. As the PATRIOT Act was written and passed, it allowed law enforcement to simply claim that there was a national security interest without specificity and without oversight. In other words "we just wanna" was good enough. (And for the record, I consider every lawmaker who voted for it to be a traitor or a coward). The Second Circuit didn't go so far as to strike the entire NSL provision from the books, but it did require that anyone seeking an NSL and a gag order would need to confront that "heavy presumption against its constitutional validity," and explain to a court why it needed such a draconian device.

To recapitulate our conclusions, we (1) construe subsection 2709(c) to permit a nondisclosure requirement only when senior FBI officials certify that disclosure may result in an enumerated harm that is related to ???an authorized investigation to protect against international terrorism or clandestine intelligence activities,??? (2) construe subsections 3511(b)(2) and (b)(3) to place on the Government the burden to show that a good reason exists to expect that disclosure of receipt of an NSL will risk an enumerated harm, (3) construe subsections 3511(b)(2) and (b)(3) to mean that the Government satisfies its burden when it makes an adequate demonstration as to why disclosure in a particular case may result in an enumerated harm, (4) rule that subsections 2709(c) and 3511(b) are unconstitutional to the extent that they impose a nondisclosure requirement without placing on the Government the burden of initiating judicial review of that requirement, and (5) rule that subsections 3511(b)(2) and (b)(3) are unconstitutional to the extent that, upon such review, a governmental official???s certification that disclosure may endanger the national security of the United States or interfere with diplomatic relations is treated as conclusive. (Op. at 48)

More importantly, the Second Circuit imposed judicial review requirements including requirements for prompt judicial review.

We would deem it to be within our judicial authority to conform subsection 2709(c) to First Amendment requirements, by limiting the duration of the nondisclosure requirement, absent a ruling favorable to the Government upon judicial review, to the 10-day period in which the NSL recipient decides whether to contest the nondisclosure requirement, the 30-day period in which the Government considers whether to seek judicial review, and a further period of 60 days in which a court must adjudicate the merits, unless special circumstances warrant additional time. See Thirty-Seven Photographs, 402 U.S. at 373-74 (imposing time limits to satisfy constitutional requirements). If the NSL recipient declines timely to precipitate government-initiated judicial review, the nondisclosure requirement would continue, subject to the recipient???s existing opportunities for annual challenges to the nondisclosure requirement provided by subsection 3511(b). If such 16 an annual challenge is made, the standards and burden of proof that we have specified for an initial challenge would apply, although the Government would not be obliged to initiate judicial review. (Op. at 49-51)

The Second Circuit appears to have performed a bit of CPR on the Constitution after the Bush Administration's attempted murder. Let us hope that this is a trend which will continue.

Full post as published by Citizen Media Law Project on December 17, 2008 (boomark / email).