December 15, 2008 | By Kurt Opsahl

Second Circuit Rules Against National Security Letter Gag Orders

Today, the federal Second Circuit Court of Appeals gave another setback to the Bush Administration's claims for sweeping new Executive powers. The court found the National Security Letter (NSL) statute's gag provision unconstitutional in Doe v. Mukasey. The NSL law allows the government to seek your electronic communications transactional records from your ISP without obtaining a court order. The gag provisions required the recipient of a NSL to stay quiet as long as the government desired, with only a fig leaf of judicial review.

The fig leaf was not good enough to satisfy the First Amendment. The Second Circuit struck down the statute's truncated judicial review provisions, which required the court to treat the FBI's assertions as conclusive absent evidence of bad faith. In addition, the government was required to initiate judicial proceedings to enforce the gag, instead of the ISP who received the NSL. The Court also construed several controversial aspects of the NSL statute narrowly, substantially reducing the scope of the FBI's gag power.

The Second Circuit allowed the FBI to continue to issue NSL to communications service providers, but only pursuant to the new narrower interpretation. The Court did not address the Fourth Amendment implications of NSLs, since the government had withdrawn the NSL at issue before the court ruled, leaving the gag order as the only live issue. District Court Judge Marrero's prior decision is also worth reading.

The ACLU represents the Doe plaintiff subject to the gag order. EFF, along with the National Security Archive, submitted an amicus brief in support of the Doe plaintiff.


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