The Second Circuit Court of Appeals heard arguments in Doe v. Gonzales, two cases challenging the constitutionality of National Security Letters. NSLs are secret subpoenas for communications records — so secret that NSL recipients are gagged from even revealing their identities as recipients, hence “Doe.” The FBI’s power to send NSLs demanding server logs, library patron records, and other sensitive communication details was expanded by the USA PATRIOT Act, but challenges have been frustrated until now by the gag orders that the NSLs include. Under the law, NSL recipients are forever barred from disclosing the subpoena, so the actual targets of the subpoena may never know that their communications have been scrutinized.
Does, represented by the ACLU, are an ISP and a member of the American Library Association. Both had won decisions below, one that the NSL law was unconstitutional on First and Fourth Amendment grounds (SDNY), the other that the recipient could disclose its identity (D.Conn.) The government appealed. The Second Circuit panel of Cardamone, McLaughlin, and Parker heard arguments.
ACLU argued the NSLs frustrated judicial review because under the text of the letters and the law, it was not clear the recipient could even speak about the matter to a lawyer. The government suggested it was obvious that NSLs could be discussed with counsel, but could not commit to changing the language of the subpoenas when pressed by the court.
The court, with fairly active questioning from Judges Parker and Cardamone, seemed concerned with the perpetual secrecy that NSLs impose. “This throws our society under a great shroud of secrecy,” as Judge Parker put it in questions to the government. The Connecticut ALA member, in particular, argued that it should be permitted to speak of its particular experience — to exercise its First Amendment rights to participate in government debate over PATRIOT re-authorizatoin.
Judge Marrero’s decision below, finding the NSL statute unconstitutional, accounted for the First Amendment rights of online speakers and their service providers. Let’s hope the Second Circuit’s concerns are reflected in a similar decision.
For more detail, see Kurt Opsahl’s report in EFF’s deeplinks.