ACLU: FBI still misusing National Security Letter gag orders

October 1, 1:23 PMCivil Liberties ExaminerJ.D. Tuccille

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A federal appeals court may have slapped the Federal Bureau of Investigation last year for its misuse of gag orders to prevent discussion of government investigations conducted under the authority of National Security Letters, but that hasn't slowed the feds very much. According to the American Civil Liberties Union, despite a court's finding that such gag orders are constitutionally suspect and should be subject to judicial review, the FBI continues to muzzle recipients of the controversial letters, preventing them from participating in public debate over the Patriot Act and the security state.

National Security Letters are powerful tools that allow federal agents to obtain information about investigation targets from third parties, such as telephone companies, financial institutions, Internet service providers, and consumer credit agencies on their own say-so, without judicial review. Some 47,000 such letters were issued in 2005 alone, according to the Department of Justice's Office of the Inspector General (PDF). The letters don't receive much public discussion, probably because many of the recipients are also issued gag orders, forbidding them to discuss the experience.

Those gag orders were found to be constitutionally suspect exercises of "prior restraint" in a decision issued last year by the Second District U.S. Court of Appeals. In its decision, the court said:

The nondisclosure requirement of subsection 2709(c) is not a typical prior restraint or a typical content-based restriction warranting the most rigorous First Amendment scrutiny. On the other hand, the Government’s analogies to nondisclosure prohibitions in other contexts do not persuade us to use a significantly diminished standard of review. In any event, John Doe, Inc., has been restrained from publicly expressing a category of information, albeit a narrow one, and that information is relevant to intended criticism of a governmental activity.

While the court stopped short of barring the gag orders, it did say each order should be subject to judicial review to allow the target a chance to object.

But, says the ACLU, the FBI is "continuing to unconstitutionally enforce its five-year-old gag order on a John Doe NSL recipient and his ACLU attorneys."

"The FBI's misuse of its gag power continues to prevent NSL recipients like Doe – who have the best first-hand knowledge of the FBI's use and abuse of NSL power – from participating in the Patriot Act debate in Congress," said Melissa Goodman, staff attorney with the ACLU National Security Project.

Unable to speak out about their experiences as the subjects of National Security Letters, recipients of such letters, including businesspeople and librarians, can only stand on the sidelines while the discussion is conducted in theoretical terms.

Worse, the ACLU maintains that the gag order on its John Doe client is being used to suppress the revelation that an NSL was used in a search for records it was not legally entitled to obtain.

The Senate Judiciary Committee is currently considering legislation (PDF) that could limit the use of National Security Letters.

email J.D.: civilliberties (at) tuccille.com