Kudos to the ACLU, whose case Doe v. Mukasey resulted in the 2nd Circuit Court of Appeals' striking down Patriot Act provisions that impose gag orders on those who receive national security letters. A national security letter (NSL) is a document that allows the FBI to obtain information about you without first getting a warrant from a judge, which means without your 4th Amendment rights against unreasonable search and seizure being protected. Not surprisingly, after the Patriot Act made it easier to use national security letters, their use - and abuse - increased dramatically. One of the problems in challenging NSLs has been the gag order (image credit) that accompanies it - the recipient may not tell anyone they've received the NSL. In Doe v. Mukasey, the recipient of the NSL represented by the ACLU is an internet service provider who is still subject to a gag order after more than 4 years, even though the FBI was no longer seeking the information it had requested. As a result, the ACLU cannot reveal their clients' name and the provider cannot say it received the NSLThe court invalidated provisions that required NSL recipients to initiate judicial review of gag orders and limited that review. It held that the government must bear the burden of going to court to justify silencing NSL recipients, and that the limits placed on judicial review essentially required the courts to defer entirely to the executive branch. Such deference runs counter to "well-settled First Amendment standards and deprive[s] the judiciary of its important function as a protector of fundamental rights," according to Arthur Eisenberg, Legal Director for the New York Civil Liberties Union. As a result of the ruling, the government will have to justify the gag order on this NSL recipient.
