Court Limits Gag-Order Provisions of Patriot Act

(CN) - Provisions of the Patriot Act violate the First Amendment by forcing recipients of National Security Letters to keep quiet about the government's demands for customer records, the 2nd Circuit ruled Monday.

The three-judge panel endorsed a scaled-back version of the district court's injunction, which prevents FBI officials from enforcing gag orders against Internet and telephone service providers.

The disputed provisions concern administrative subpoenas called National Security Letters (NSLs). Issued by the FBI, these letters require electronic service providers, such as Internet hosts and telephone companies, to hand over sensitive customer records. The Patriot Act bars recipients from discussing the requests.

The American Civil Liberties Union, the New York Civil Liberties Union and an Internet service provider sued the government, claiming the gag order was an unconstitutional prior restraint on free speech. They also challenged a provision that allowed government officials to duck judicial review by asserting that disclosure could "endanger the national security of the United States or interfere with diplomatic relations."

U.S. District Judge Victor Marrero sided with the ACLU and enjoined the FBI from issuing NSLs and enforcing the gag orders.

The 2nd Circuit agreed that certain portions of the statute were unconstitutional, including the imposition of a gag order without judicial review.

However, the court called the district court's injunction "too broad." It said the injunction should only prevent FBI officials from enforcing the gag order "in the absence of government-initiated judicial review."

"In showing why disclosure would risk an enumerated harm, the government must at least indicate the nature of the apprehended harm and provide a court with some basis to assure itself that the link between disclosure and risk of harm is substantial," Judge Jon Newman wrote.

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