Security Gag Orders Unconstitutional: ACLU

Security gag orders unconstitutional: ACLU

http://www.washingtonpost.com/wp-dyn...081502142.html

By Edith Honan
Wednesday, August 15, 2007; 8:51 PM

NEW YORK (Reuters) - A U.S. law that requires people who are formally contacted by the FBI for information to keep it a secret is unconstitutional, a top civil liberties group told a Manhattan federal court on Wednesday.

An FBI letter requesting information -- called a National Security Letter (NSL) -- is effectively a gag order because it tells the recipient the request must remain a secret, even though it needs no authorization by a judge, said Jameel Jaffer, an American Civil Liberties Union lawyer.

Recipients have the right to challenge the secrecy order in court under a 2006 congressional amendment to the NSL law.

But the law says that judges must defer to the FBI's view that secrecy is necessary, undermining the judiciary's check on the power of the executive branch, Jaffer said.

Government lawyers argued before U.S. District Judge Victor Marrero that the FBI's need to ensure that targets are unaware of a probe outweighs the free speech rights of NSL recipients.

The ACLU is fighting the government on behalf of an Internet access company that received an NSL.

The company filed suit in April 2004. In September 2004 Marrero found the NSL gag violated constitutional free speech rights and struck it down as unconstitutional.

The government appealed the ruling, but Congress amended the NSL provision in its reauthorization of the Patriot Act last year before an appeals court could hear the case.

The revised NSL provision -- allowing the gag to be challenged in court -- has been sent back to Marrero.

The FBI dropped the demand on the Internet company a year ago, but the gag remains in place. The ACLU said the Internet company was prevented from participating in the public debate surrounding the Patriot Act's reauthorization, even though it had "firsthand knowledge of this sweeping FBI power."

"Excessive secrecy invites abuse and we have seen this played out on a massive scale," Jaffer told Marrero.

The ACLU says that between 2003 and 2005 more that 143,000 NSLs were issued.

In June the FBI said it had possibly violated the law or its rules more than 1,000 times since 2002 in collecting data with the NSL about phone calls, e-mails and financial records while investigating terrorism or espionage suspects.