November 2, 2005 | By Kurt Opsahl

Report from Hearing on National Security Letters

Today the Second Circuit Court of Appeals heard argument in the case of Doe v. Gonzales, considering whether National Security Letters (NSLs) are unconstitutional. NSLs are secret subpoenas for communications logs, issued directly by the FBI without any judicial oversight. These secret subpoenas allow the FBI to demand that online service providers produce records of where their customers go on the Web, as well as what they read and with whom they exchange email. The FBI can even issue NSLs for information about people who haven't committed any crimes.

In addition, NSLs are practically immune to judicial review. They are accompanied by gag orders that allow no exception for talking to lawyers and provide no effective opportunity for the recipients to challenge them in court. This secret subpoena authority, which was expanded by the USA PATRIOT Act, could be applied to nearly any online service provider for practically any type of record, without a court ever knowing.

(Read more after the jump.)

In a landmark decision, the federal district court in the Southern District of New York (SDNY) found NSLs unconstitutional, and the Second Circuit heard the government's appeal. The argument was consolidated with the hearing on the government's appeal of a second NSL case in Connecticut, which struck down a gag order imposed on a library under the same statute.

The consolidated cases were heard before Judges Richard Cardamone, Joseph McLaughlin and Barrington Parker, Jr. The Department of Justice represented the government and the American Civil Liberties Union represented the unidentified "John Doe" plaintiffs.

The argument focused almost exclusively on the SDNY case, with the DOJ arguing that NSLs were constitutional because, while not specified in the statute, the law implicitly allows for judicial review and implicitly allows consultation with an attorney. Under questioning from the bench, the government took the position that the NSL statute allowed a company to communicate with "the correct people" inside the company, and with outside attorneys.

The court was concerned about the unlimited time of the gag orders, to which the DOJ argued that the needs of national security mean that there is a continued need for secrecy. As a "fall-back" position, the DOJ also argued that this case should be examined "as applied" to the particular facts of the case, in which the investigation is ongoing. One judge expressed concern about having a "great shroud of secrecy" noting that "we are an open society."

The court asked about enforcement provisions, and the DOJ conceded that there were none, though the DOJ could ask for an injunction.

The DOJ repeatedly compared the NSLs to grand jury subpoenas, saying the NSLs were not more coercive, and noting also that the Does challenged the subpoenas, so they in particular were not coerced.

The ACLU countered with an articulate argument that the decision should be affirmed, noting that the harsh language in an NSL could coerce small ISPs into compliance without realization that they could talk to an attorney. (On rebuttal, the Court pressed the DOJ to agree to change the NSL language, but the arguing attorney was unable to commit). While the court seemed to believe it might interpret the law to allow for consultations with attorneys, the ACLU noted that the Second Circuit still could not interpret away the permanent and categorical gag orders.

In response to the government's attempts to liken NSLs to grand jury subpoenas, the ACLU noted that people who testify before grand juries are able to talk about their testimony immediately afterwards.

The ACLU also argued for the right of a library that had received an NSL to disclose its identity without fear of violating the gag provision, pursuant to its First Amendment rights. In particular, the gag limits the library's ability to engage in debate on the renewal of the USA PATRIOT Act. The ACLU asked for the court to decide this aspect of the consolidated cases first, which the government agreed to on rebuttal.

Law Professor Wendy Seltzer and Librarian Michael Golrickalso wrote summaries of the hearing.

There are articles in today's Connecticut Post, Hartford Courant, and New York Times.

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