The American Civil Liberties Union Wednesday disclosed documents of a lawsuit it filed three weeks ago challenging the FBI’s ability to demand sensitive customer records from businesses without judicial oversight.
The lawsuit was filed in the Southern District of New York on April 6, but the ACLU said the case was kept under seal to avoid penalties for violating a strict gag provision contained in the USA Patriot Act, which it’s also challenging on First Amendment grounds. The group said it was allowed to reveal a limited version of the case after three weeks of negotiations with the government.
“Before the Patriot Act, the FBI could use this invasive authority only against suspected terrorists and spies,” Jaffer said. “Now it can issue National Security Letters to obtain information about anyone at all. This should be disturbing to all of us.”
The fact that the government agreed only under pressure to allow disclosure of parts of the legal complaint, the ACLU said, demonstrates that the gag order is unnecessarily broad and restrictive.
“It is remarkable that a gag provision in the Patriot Act kept the public in the dark about the mere fact that a constitutional challenge had been filed in court,” said Ann Beeson, ACLU Associate Legal Director. “President Bush can talk about extending the life of the Patriot Act, but the ACLU is still gagged from discussing details of our challenge to it.”
In legal papers, the ACLU argues that the National Security Letter provision violates the First and Fourth Amendments because it authorizes the FBI to force disclosure of sensitive information without adequate safeguards. The FBI can issue a National Security Letter without obtaining prior judicial approval, without demonstrating a compelling need to justify the disclosure, and without specifying any mechanism that would allow a recipient to contest the demand.
The lack of such safeguards, the ACLU said, allows the government to unmask anonymous speakers, violating a tradition of anonymous speech that goes back to the Federalist Papers. Protecting this right is especially critical given the large number of Internet users who use pseudonyms to engage in legitimate political speech.
The ACLU first obtained information about the use of National Security Letters last March through a Freedom of Information Act lawsuit.
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