2nd Circuit Appears Skeptical of Validity of Patriot Act's National Security Letters

Anthony Lin

New York Law Journal

Second Circuit Judges Jon Newman, Guido Calabrese and Sonia Sotomayor expressed concern during oral arguments Wednesday that the statutory language of a key provision of the USA Patriot Act might be overly broad, potentially applying in instances where national security is not truly at stake.

The 2001 statute authorized the Federal Bureau of Investigation to issue National Security Letters (NSLs) to telecommunications carriers like phone companies and Internet service providers, compelling their cooperation in government investigations relating to counterterrorism and other national security efforts.

NSLs also carry a gag order prohibiting any recipient from disclosing that fact. The American Civil Liberties Union challenged the nondisclosure requirement on First Amendment grounds.

In September 2004, Southern District of New York Judge Victor Marrero struck down the NSL provision. The government appealed the ruling, but Congress amended the provision before the circuit issued a decision.

Last September, Marrero again found the statute unconstitutional. The appeal in Doe v. Gonzalez, 07 cv. 4943, was heard Wednesday, with the judges questioning attorneys for the government for more than one hour.

The statute states that a gag order may be issued by an FBI special agent-in-charge of a field office when "there may result a danger to the national security of the United States, interference with a criminal, counterterrorism, or counterintelligence investigation, interference with diplomatic relations, or danger to the life or physical safety of any person."

Judge Calabrese expressed his concern to Assistant U.S. Attorney General Gregory Katsas that such language would permit the issuance of NSLs and gag orders in traffic safety investigations or operations seeking to determine if a state governor is patronizing prostitutes.

"Why isn't the appropriate thing to say that Congress here used, in a First Amendment sense, language that simply goes too far?" asked the judge.

The panel also expressed concern that the statute constrained judges reviewing such gag orders to uphold them unless they had "no reason to believe" any harm would arise from permitting disclosure.

Katsas countered that this standard could be "charitably construed" as "no good reason" and said the FBI's certification process was geared toward counterterrorism and national security concerns.

But Calabrese said he was particularly uncomfortable that gag orders could be certified by a special agent-in-charge, rather than a more senior FBI official.

"A special agent-in-charge is not someone who is directly responsible to the people," the judge said.

The ACLU brought the underlying case on behalf of a small Internet service provider served with an NSL several years ago. Jameel Jaffer, the director of the ACLU's national security project, told the court that gag orders were preventing many opposed to the Patriot Act's surveillance programs from speaking out.

But the judges pointed out that, of more than 40,000 NSLs issued, only three parties had complained about their inability to discuss them.

"Do we have any reason to believe there is anyone out there other than your client who is dying to make a speech about this?" Judge Sotomayor asked.