Second Circuit rules national security letter gag requirement unconstitutional

[JURIST] A three-judge panel of the US Court of Appeals for the Second Circuit [official website] ruled [opinion, PDF] Monday that nondisclosure requirements contained in national security letters (NSLs) [CRS backgrounder, PDF; FBI backgrounder] sent by the Federal Bureau of Investigation (FBI) [official website] to Internet service providers (ISPs) are violations of the ISPs' First Amendment free speech rights. The case, John Doe, Inc. v. Mukasey, concerned the applicability of a statute [18 U.S.C. § 2709, text] containing a blanket prohibition against the disclosure of an NSL sent by the FBI to John Doe, Inc. The NSL was withdrawn by the FBI in November 2006, and in subsequent litigation, the US District Court for the Southern District of New York [official website] invalidated the statute [opinion, PDF; JURIST report] as a violation of the First Amendment. In Monday's opinion, Judge Jon Newman [official profile] wrote:

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.
The American Civil Liberties Union (ACLU) [advocacy website], which represented the plaintiff in the case, called the verdict [ACLU press release] a "major victory for the rule of law." The Electronic Frontier Foundation (EFF) [advocacy website] applauded the decision [EFF press release], calling it "another setback to the Bush Administration's claims for sweeping new Executive powers."

The FBI withdrew a similar NSL [JURIST report] in May as part of a settlement with the Internet Archive [archive website] that lifted a gag order preventing the parties from speaking about the NSL. A review of FBI use of NSLs by the Justice Department found that a number of them were used improperly [JURIST report], and that such improper usage had increased in 2006 compared to previous years. A New York Times report in September 2007 showed that FBI electronic surveillance within the US was more widespread [NYT report; JURIST report] than previously thought.


 

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