Suit Challenges Constitutionality of National Security Letters

August 24, 2005. A plaintiff filed a complaint [18 page PDF scan] in U.S. District Court (DConn) against Attorney General Alberto Gonzales and others seeking a declaratory judgment that 18 U.S.C. § 2709 violates the First, Fourth and Fifth Amendments of the US Constitution, and an injunction barring the FBI from enforcing a National Security Letter.

The plaintiffs also seek preliminary relief. The District Court has scheduled a hearing for Wednesday, August 31, 2005.

§ 2709 is titled "Counterintelligence access to telephone toll and transactional records". It provides that the FBI may "request the name, address, length of service, and local and long distance toll billing records of a person or entity if the Director (or his designee) certifies in writing to the wire or electronic communication service provider to which the request is made that the name, address, length of service, and toll billing records sought are relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities". (Parentheses in original.)

This section further requires service providers to comply with any such request, which is more commonly referred to as a National Security Letter or NSL. It further imposes a gag on communications about such NSLs. It provides that "No wire or electronic communication service provider, or officer, employee, or agent thereof, shall disclose to any person that the Federal Bureau of Investigation has sought or obtained access to information or records under this section."

§ 505 of the PATRIOT Act amended § 2709.

There is no requirement in this section that the FBI first obtain a court order. There is no notice to the affected individuals that their privacy has been compromised. There is no procedure for the recipient, or affected individuals, to contest the validity of the NSL.

However, the Department of Justice (DOJ) has conceded that there are constitutional limitations on the gag order authority. Moreover, two different bills approved by the House and Senate in July to extend the expiring provisions of the PATRIOT Act contain amendments to Section 2709 that would limit gag order authority. See, HR 3199, the "USA PATRIOT and Terrorism Prevention Reauthorization Act of 2005", and S 1389, the "USA PATRIOT Improvement and Reauthorization Act of 2005". See also, story titled "House Approves PATRIOT Act Extension Bill" in TLJ Daily E-Mail Alert No. 1,180, July 22, 2005.

The complaint was filed under seal on August 9, 2005, and released to the public, in substantially redacted form, on April 24, 2005. The lead plaintiff, whose identity is redacted, is represented by the American Civil Liberties Union (ACLU), which is also a named plaintiff.

The complaint states that NSLs issued pursuant to Section 2709 "demand the disclosure of a wide range of sensitive and constitutionally protected information, including the identity of a person who has borrowed particular books from a public library or who has engaged in anonymous speech on the Internet."

The complaint further states that "an agent of defendant FBI served an NSL on plaintiff [redacted text] The NSL directed [redacted text] to disclose certain subscriber records and other sensitive information. [redacted text] strictly guards the confidentiality and privacy of its library and Internet records, and believes it should not be forced to disclose such records without a showing of compelling need and approval by a judge."

The complaint names as defendants the Attorney General, the Director of the FBI, and the FBI official who signed the NSL. The redacted complaint is not clear as to whether the FBI is also a defendant.

The unredacted portions of the complaint suggest that the lead plaintiff is an employee of a library that provides internet access to its users. For example, it states that "The vast majority of libraries around the country are "electronic communication service providers" under Section 2709 because they use online service to track circulation and cataloging of library materials, to track patron borrowing, and to provide Internet access to library patrons. As a result, libraries maintain a wide range of sensitive information about the reading habits and Internet usage of library patrons." It includes other statements regarding library usage, and the activities of the American Library Association (ALA).

The ACLU also stated in a release that "The client is a member of the American Library Association."

The ALA also issued a release. It stated that "This is the further evidence that the FBI is indeed using provisions of the USA PATRIOT Act to obtain library patron reading records".

The complaint adds that the ACLU seeks to "stem the backlash on civil liberties that has taken place in the name of national security", and in particular, under the PATRIOT Act, which amended § 2709.

The lead attorney for the plaintiffs is Ann Beeson of the ACLU.

This case is redacted plaintiff, et al. v. Alberto Gonzales, Robert Mueller, and a redacted FBI official, U.S. District Court for the District of Connecticut, Judge Janet Hall presiding.