Court Strikes Down Gag Rule for National Security Letters

Yesterday, in a well-reasoned decision, a federal judge in New York struck down under the First Amendment a particularly extreme provision in the Patriot Act — the “gag rule” that applied to National Security Letters (NSLs). As discussed in my Senate Judiciary testimony this April, NSLs are subpoenas issued by the FBI, with no judicial oversight. They require phone companies, banks, and Internet service providers to turn over customer records. The “gag rule,” in the court’s words applied to “the mere fact that the FBI issued an NSL” and also, “most troubling to the Court, statements critical of the way that the government uses NSLs.”

When it comes to gag rules in the future, the court made two holdings:

1) “The government’s use of nondisclosure orders must be narrowly tailored on a case-by-case basis.” In other words, no blanket gag orders that apply to all NSLs.

2) “The nondisclosure orders must be subject to meaningful judicial review.” The revised Patriot Act had “judicial review” provisions that were too weak to pass constitutional muster.

This case is good news for creating the right set of rules around national security searches. It will be a good precedent to cite in other cases where the government is claiming that “national security” should trump the Constitution. It also will improve use of NSLs, which were the subject of a scathing report by the Department of Justice Inspector General earlier this year.

Here’s what we need to do next on NSLs:

— Especially in light of the court decision, Congress should consider the better checks and balances contained in bipartisan efforts such as the SAFE Act, introduced in the last Congress as S.737.

— Recipients of an NSL should receive a “Statement of Rights and Responsibilities.” This Statement would prevent over-reaching by the FBI. It would inform the recipient on issues such as the right to consult an attorney; the right to appeal an NSL to a court; and the limited scope of records that an NSL can cover.

Peter Swire