[JURIST] Lawyers representing the American Civil Liberties Union (ACLU) [advocacy website] argued in federal court Wednesday that national security letters (NSL) [CRS backgrounder, PDF; FBI backgrounder] authorized under the USA Patriot Act [JURIST news archive] are unconstitutional because they act as a gag order without any judicial check [press release]. The ACLU, which brought the lawsuit [ACLU materials] on behalf of an anonymous Internet service provider that received an NSL, said that while "secrecy may be necessary in rare cases, the FBI's power to silence the recipients of national security letters should be subject to meaningful judicial oversight." The ACLU argued that the gag order provision violates the First Amendment because the "judicial review it allows is illusory" and that the current NSL provisions, which were amended to allow NSL recipients to challenge gag orders in court, require courts to "defer to the FBI's view that secrecy is necessary."

In September 2004, a federal judge struck down [PDF text] the original NSL gag order provisions, finding that the gag orders violated the First Amendment rights of NSL recipients by barring them from participating in the political debate of the Patriot Act. The provision was amended in the March 2006 renewal of the Patriot Act [JURIST report]. Reuters has more.