In detail, the National Security Letter enables the FBI to demand the names, screen names, addresses, email header information, and other sensitive information held by Internet Service Providers and other businesses, the disclosure of which violates a tradition of anonymous speech that goes back to the Federalist Papers, the ACLU claims.
“The National Security Letter provision allows the FBI to demand the sensitive records of innocent people in complete secrecy, without ever appearing before a federal judge,” said Jameel Jaffer, an ACLU staff attorney.
The National Security Letter is a "gag" provision of the Patriot Act, which has not been disclosed to the public at large or to other non-governmental agencies and businesses.
According to the ACLU, the National Security Letter provision violates the First and Fourth Amendments because it gives the feds carte blanche to circumvent judicial approval or even demonstrate a reason to acquire the information in the first place.
Prior to the enactment of the Patriot Act in 2001 after the Sept. 11 attacks, the FBI and other agencies could only us "invasive" authority in cases that involved confirmed suspected terrorists and spies. But with enforcement from the National Security Letter, the FBI can obtain information about anyone with no reason or recourse, says the ACLU.
The ACLU filed legal papers in the Southern District of New York on April 6, but was forced to file under seal to avoid being penalized for violating the gag provision of the Act.
Nearly a month later, parts of the case can be disclosed to the public, whereas some aspects of the lawsuit are still being sealed, further leading the ACLU to think that the Letter violates the constitution.
Defendants in the lawsuit include Attorney General John Ashcroft and FBI Director Robert Mueller. The case is assigned to Judge Victor Marrero.
“It is remarkable that a gag provision in the Patriot Act kept the public in the dark about the mere fact that a constitutional challenge had been filed in court,” said Ann Beeson, ACLU Associate Legal Director. “President Bush can talk about extending the life of the Patriot Act, but the ACLU is still gagged from discussing details of our challenge to it.”
The ACLU is scheduled to file a summary judgment motion on May 17, 2004. The government will respond on June 7, 2004, and according to the ACLU, all briefing will be completed in July 2004.
The court is expected to schedule arguments in the case in late summer 2004.
The ACLU has consistently challenged many aspects of the Patriot Act since its inception. Many other efforts are afoot nationwide to overturn the Act, which is slated to expire on Dec. 31, 2005.
Just over a dozen key provisions of the Patriot Act are set to expire, however, many portions have no expiration date and will continue to enforce government-related investigations indefinitely.