Second Circuit Court Hears Argument in NSL/Patriot Act Challenge

On Wednesday, November 2, a panel of judges in the Second Circuit Court of Appeals in New York City heard two arguments regarding an American Civil Liberties Union (ACLU) challenge to the issuance of National Security Letters (NSLs) to a Connecticut Library and New York Internet Service Provider (ISP), which asked each to turn over customer records in regards to terrorist investigations. The American Booksellers Foundation for Free Expression is among the organizations that have filed amicus briefs in both cases.

While there was no ruling, two of the three judges said they were troubled by the fact that the gag orders issued in NSL cases are permanent. And the New York Times reported that the judges appeared to be skeptical of "arguments by a Justice Department lawyer who said it was within constitutional limits for the government to prevent recipients of such requests from ever speaking about them."

The FBI can issue NSLs without court review to obtain the records of electronic communications service providers, including a list of websites visited by a patron using a computer terminal in a library, bookstore, or other business that offers Internet access to the public.

The Connecticut library case came to light in August when the ACLU challenged a NSL that had been issued to obtain the records of a patron's use of the Internet. ACLU asked the court to lift the gag order so that the librarian could participate in the debate over the reauthorization of the Patriot Act.

On September 9, a federal judge lifted the gag order, ruling that it violated the librarian's First Amendment right to participate in the current debate over the reauthorization of the USA Patriot Act and did not pose a danger of exposing the FBI's counter-terrorism investigation. However, the judge temporarily stayed her order, allowing the government to appeal to the Second Circuit Court of Appeals, which refused to lift the stay until it holds a hearing.

On Monday, October 3, ABFFE joined the American Library Association (ALA), the Freedom to Read Foundation, and the Association of American Publishers in filing an amicus brief in support of an emergency motion recently filed by the American Civil Liberties Union (ACLU) on behalf of the Connecticut library.

In regards to the New York ISP, the ACLU, the American Civil Liberties Union Foundation, and the ISP first filed their challenge in April, 2004, contending that the amended law violated the First and Fourth Amendments, because it does not impose adequate safeguards on the FBI's authority to force disclosure of sensitive and constitutionally protected information. Their lawsuit also challenged the constitutionality of the statute's gag provision, which prohibits anyone who receives an NSL from disclosing even that the FBI has sought information.

In September 2004, a federal court struck down Section 505 on the grounds that it violates free speech rights under the First Amendment, as well as the right to be free from unreasonable searches under the Fourth Amendment. ABFFE and other groups representing libraries, authors, publishers, and professors filed an amicus brief in support of ACLU lawsuit in August.

The groups contend that NSLs, as amended in Section 505 of the USA Patriot Act, threaten the privacy of bookstore and library patrons because the provision makes it easy for the FBI to obtain sensitive information about the customers of "electronic communications service providers," including bookstores and libraries that offer Internet services to the public. --David Grogan