ACLU 1, Patriot Act 0

Jeralyn Merritt: National Security letters are not just used to get records of suspected terrorists and they have a tremendous potential for abuse.
This post, written by Jeralyn Merritt, originally appeared on FireDogLake

A federal judge in New York today struck a fatal blow to the Patriot Act provision authorizing national security letters. The ACLU, which brought the lawsuit, reports:
The law has permitted the FBI to issue NSLs demanding private information about people within the United States without court approval, and to gag those who receive NSLs from discussing them. The court found that the gag power was unconstitutional and that because the statute prevented courts from engaging in meaningful judicial review of gags, it violated the First Amendment and the principle of separation of powers.
The case is Doe v. Gonzales and the 106 page opinion is available here (pdf). You can see a copy of a national security letter here (pdf).

This is an important decision. National Security letters are not just used to get records of suspected terrorists and they have a tremendous potential for abuse.
NSLs may be used to obtain access to subscriber, billing or transactional records from Internet service providers; to obtain a wide array of financial and credit documents; or even to obtain library records. In almost all cases, recipients of NSLs are forbidden, or "gagged," from disclosing that they have received the letters, even to close family and friends. This has been a severe hardship on NSL recipients, who not only have been forced to keep this major event secret, but who have been prevented from meaningfully participating in public discussions about NSLs. The court today held that because the gag provisions cannot be separated from the entire amended statute, the court was compelled to strike down the entire statute.
In other words, since the individual receiving the request for records is "gagged," i.e., not permitted to disclose receipt of the letter, he or she can't challenge it, even in a court of law. That results in no judicial oversight.
"Without oversight, there is nothing to stop the government from engaging in broad fishing expeditions, or targeting people for the wrong reasons, and then gagging Americans from ever speaking out against potential abuses of this intrusive surveillance power."
Jeralyn Merritt is criminal defense attorney in Denver representing persons accused of serious federal and state offenses.
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