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An investigative tool that the Federal Bureau of Investigation claims is critical in its pursuit of potential terrorists came under attack at the 2d U.S. Circuit Court of Appeals as the government last week appealed two adverse decisions. Lawyers with the American Civil Liberties Union (ACLU) said that a federal statute that allows the FBI to send national security letters (NSL) to Internet service providers asking for records of computer users was unconstitutional because it places those providers, which range from large corporations to small-town libraries, under a permanent gag order. While NSLs have been used in one form or another since 1986, ACLU lawyer Jameel Jaffer said their current incarnation under the USA Patriot Act is unconstitutional because the FBI no longer needs individualized suspicion to ask for the records and because “the statute is coercive.” But Douglas N. Letter of the U.S. Department of Justice said that the government had already answered some of the ACLU’s concerns by agreeing that recipients of an NSL can consult with counsel and have access to judicial review. And Letter told a three-judge panel-Barrington D. Parker, Richard J. Cardamone and Joseph McLaughlin- that the dispute over the letters was much ado about nothing because there are no civil or criminal penalties for violating the gag order. Two cases The issues came before the circuit in two cases. The first was an appeal of a decision by Judge Victor Marrero of the Southern District of New York, who in 2004 found the statute, 18 U.S.C. 2709, unconstitutional on its face under the First and Fourth amendments. In Doe v. Ashcroft, No. 04 Civ. 2614, involving an Internet access firm, Marrero found that the statute “effectively bars or substantially deters any judicial challenge to the propriety of an NSL request.” And the ban on public disclosure, he said, “operates as an unconstitutional prior restraint on speech.” The second case concerned a much narrower issue. It came from Connecticut, where District Judge Janet Hall granted a preliminary injunction in Doe v. Gonzales, No. 05 Civ. 1256, against enforcement of the gag order. The injunction was sought by a library that wanted to reveal that it had received an NSL in order to take part in the debate over changes to the statute now being considered by the U.S. House and Senate. Cardamone and Parker both said they were concerned about a gag order that apparently runs in perpetuity. “The troubling aspect from my standpoint is that there is no limit,” Cardamone said. Later, he said he was worried that the statute, which forces recipients to take the secret “to the grave,” was contrary to the values of an open society in that it seemed to “throw our society” under “a great shroud of secrecy.” There also should be a mechanism, Cardamone said, for lifting the gag order, whether by application to a court or another means. But Parker appeared sympathetic to Letter’s argument that contrary to the lower court’s finding, judicial review is indeed available, and the House and Senate are considering new language that would make that fact explicit. Letter also indicated that based on a ruling by the circuit, the government would consider changing the wording of the letters it sends to providers. He called the NSL procedure “an extremely important technique” in terror investigations. The nondisclosure provision, he said, was needed because of the nature of national security investigations, which are “forward looking” and cumulative. Jaffer said the lack of criminal or civil penalties does not mean that the government might not use another statute to penalize institutions that do not comply with an NSL or the gag order.

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