Appeals court puts restrictions on NSL gag orders: Via Ars Technica

A federal appeals court today upheld the National Security Letter provision of the PATRIOT Act, which a lower court had stricken down last year. But the three-judge panel also imposed a series of restrictions on the gag orders that routinely accompany the controversial requests for information, saying that the government must meet a First Amendment burden higher than that imposed by the statute, and requiring law enforcement to demonstrate the need for a gag order to a judge.

Today's decision is the latest chapter in Doe v. Mukasey, a legal battle that began over four years ago, when the American Civil Liberties Union filed suit on behalf of an unnamed Internet service provider that had been served with a National Security Letter. These investigative tools allow the Federal Bureau of Investigation to demand records from an ISP or phone company without obtaining a court order—and, in 97 percent of cases, to forbid the company from saying anything about the information request. The government's own internal watchdogs have discovered widespread abuse of NSLs since their scope was expanded by the PATRIOT Act of 2001.

The original lawsuit attacked NSLs on both First and Fourth Amendment grounds, and the ACLU won its first round in court. But in 2006, two developments changed the contours of the battle: First, the FBI ultimately withdrew the original record request that had prompted the court fight, leaving in place only the gag order—and the corresponding First Amendment challenge. Second, Congress amended the PATRIOT Act, and in U.S.C. 18 §3511 established a mechanism for ISPs served with NSL requests to challenge them, and their attached gag orders, in court. Once again, the ACLU prevailed, winning wholesale invalidation of the NSL provision. An appeal by the government brought the civil liberties group back into court this summer, before the Second Circuit Court of Appeals.

The Second Circuit today chose a less radical remedy than the lower court had opted for: it allowed the NSL and gag order provisions to stand, but construed the gag rules narrowly so as to pass First Amendment muster. While agreeing with the lower court that the statutory provisions providing for judicial review of the gag orders were constitutionally flawed as written, the Second Circuit held that either Congress or the Justice Department could adopt procedures to remedy the infirmity.

Under the current language of the statute, the FBI has discretion to bar an ISP served with an NSL from speaking about it. The ISP has the burden of appealing if it finds the gag order unreasonable, and the court may remove the gag if it finds that there is "no reason to believe that disclosure may endanger
the national security of the United States, interfere with a criminal,
counterterrorism, or counterintelligence investigation, interfere with
diplomatic relations, or endanger the life or physical safety of any
person." If a high-ranking executive branch official certifies that disclosure does pose some danger, that assertion is to be "treated as conclusive unless the court finds that the certification was made in bad faith."

The court's ruling today narrows that language in several ways. First, the Second Circuit held that the alleged harm of disclosure cannot be any old risk to "life or physical safety," but must be appropriately linked to "an authorized investigation to protect against international terrorism or clandestine intelligence activities." Second, the Court held that "no reason" did not mean that literally any reason at all would do, but that the government must provide evidence establishing some specific reason for thinking such harm is likely, a standard not met if the justification "surmounts only a standard of frivolousness." Perhaps most importantly, it rejected the notion that Congress may dictate a standard of First Amendment review to judges, invalidating the statute's injunction to take the executive branch's word for it, absent some explanation of why disclosure would be harmful.

Read Original Article ( Via Ars Technica. )