Foes of FBI searches of library, Internet records renew challenge

By Andrew Noyes

August 8, 2006

Civil-liberties defenders will renew their court challenge to a special subpoena power built into anti-terrorism law that permits the FBI to scour library and Internet service provider files without search warrants.

The practice is allowed under "national security letters," a power recently reauthorized in the 2001 law known as the USA PATRIOT Act. The law bars recipients of the letters from disclosing the requests to anyone.

The American Civil Liberties Union and its New York chapter filed a new federal complaint last month, the groups said Monday. The legal papers originally were under seal because of the gag provision, but redacted versions were released with court approval.

The ACLU launched the case in April 2004 on behalf of an unnamed Internet service provider that received a subpoena. Several months later, a U.S. district court in New York ruled the power unconstitutional. The judge in the case, Victor Marrero, held that indefinite gag orders violate First Amendment free-speech rights, the ACLU said.

The government appealed the decision to the 2nd U.S. Circuit Court of Appeals, but before the court could rule, Congress amended the language on national security letters, the ACLU said. In May, the appeals court asked the district court to examine the amended language.

In its latest complaint, the ALCU argues that the gag provision gives the FBI authority to suppress speech without prior judicial review. The group also contends that the subpoena power is unconstitutional because while it permits courts to review the letters after they are issued, judges must defer to the FBI.

Jameel Jaffer, the ACLU's lead counsel in the case, called secretive government use of the letters "excessive and dangerous." According to news reports, investigators issue about 30,000 annually.

The letter in the pending case had a substantial effect on the plaintiff, who is still gagged and identified as "John Doe" in court paperwork, the ACLU said. Despite firsthand knowledge of the authority, the ISP could not participate in the heated PATRIOT Act debate that ensued nationwide in late 2005 and early 2006, the filing said.

In a similar case, the ACLU represented four Connecticut librarians who were part of a consortium that received a national security letter. The group challenged the FBI, and the government eventually withdrew its information demand and abandoned the gag order. The Supreme Court last week ordered that sealed court documents be made public.

George Christian, executive director of the Library Connection, hopes the ACLU's renewed fight results in a "definitive ruling" on "the limits of the extent to which [the letters] can be used to secure information from organizations that have collections of information."

Emily Sheketoff of the American Library Association said the ISP case "will add to the growing judicial agreement" that the "sweeping and perpetual gag order accompanying [such letters] is unconstitutional."

By Andrew Noyes

August 8, 2006