White House Won't Seek High Court Review of NSL Gag Order

Obama administration decides to let stand lower court decisions declaring the gag order provisions of the controversial 2001 Patriot Act unconstitutional. The decision means the government will have to develop new procedures under which it will bear the constitutional burden of justifying any gag that it seeks to impose.

The Obama administration has decided not to seek a Supreme Court review of lower court decisions striking down controversial Patriot Act provisions allowing the government to impose gag orders on NSLs (national security letters) recipients. FBI NSLs require recipients to turn over sensitive information about their clients and subscribers.

The gag order provision allows the FBI to forbid anyone who receives an NSL from telling anyone about the record demand. The 2001 Patriot Act allows the government to demand information from ISPs including the Websites a person visits, a list of e-mail addresses with which a person has corresponded, or even unmask the identity of a person who has posted anonymous speech on a political Website.

But a 2007 lower court decision ruled that the gag order provisions were unconstitutional, and the U.S. Court of Appeals for the Second Circuit upheld that ruling in 2008. The government's time for seeking a Supreme Court review has now expired.
"The appeals court was right to find that the FBI can't be given the unchecked power to impose gag orders on the recipients of national security letters, and the government's decision not to seek Supreme Court review means that FBI gag orders will finally be subject to meaningful judicial review," Jameel Jaffer, director of the ACLU (American Civil Liberties Union National) Security Project, said in a statement. "As the last few years have shown us, the blanket of secrecy that cloaks the FBI's activities is an invitation to abuse. Judicial review may not end that abuse altogether, but it will certainly discourage it."
The ACLU and the New York Civil Liberties Union filed Doe v. Holder in 2004 on behalf of an ISP that the FBI targeted with an NSL. Because of the Patriot Act's gag order, the lawsuit was filed under seal and, despite the lower court rejections of the NSL gag order, the ACLU is still prohibited from disclosing its client's identity.

The White House's decision not to seek a high court review of the case means the ACLU can now go back to court and force the government to defend the constitutionality of the gag order imposed on the ACLU client.
"The next step is for the government to drop the unwarranted and unconstitutional gag on Doe," said Melissa Goodman, a staff attorney with the ACLU's National Security Project. "At this point it's clear that the gag order serves no legitimate purpose."
Now that the appeals court order stands, the government will have to develop new procedures under which it will bear the burden of justifying any gag that it seeks to impose. "We hope and expect that the new procedures will strike a constitutionally appropriate balance between free expression and national security," said Arthur Eisenberg, Legal Director of the New York Civil Liberties Union.