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American Civil Liberties Union v. Ashcroft (2004)
Encyclopedia
American Civil Liberties Union v. Ashcroft (filed April 9, 2004 in the United States
) is a lawsuit
filed on behalf of a formerly unknown ISP owner by the American Civil Liberties Union
against the U.S. federal government
.
In 2010, it was revealed that John Doe was in fact Nicholas Merrill
of Calyx Internet Access. Merrill was subject to National Security Letter
s (NSLs) from the Federal Bureau of Investigation
requiring the release of private information and under a gag order
forbidding any public discussion of the issues. In September 2004, Judge Victor Marrero
of the United States District Court for the Southern District of New York
struck down the NSL provisions of the USA PATRIOT Act
. This prompted Congress
to amend the law to allow limited judicial review
of NSLs, and prompted the government to appeal the case to the United States Court of Appeals for the Second Circuit
. The appeal was dismissed by Doe I v. Gonzales, 449 F.3d 415 (2d Cir. 2006) because Congress amended Section 2709 in the USA PATRIOT Improvement and Reauthorization Act of 2005,
On the recommendation of the Second Circuit, the district court considered the amended law in 2007, in Doe v. Gonzales
. On September 6, 2007, Judge Marrero struck down the NSL provision of the revised Act, ruling that even with limited judicial review granted in the amended law, it was still a violation of separation of powers under the United States Constitution
and the First Amendment
. This is not yet enforced, pending a possible government appeal.
Because of the secrecy
rules involved, the government would not let the ACLU disclose they had even filed a case for nearly a month, after which they were permitted to release a heavily redacted
version of the complaint (shown right). According to government secrecy rules (the National Security Letter provision, [Section 2709] of the 1986 Electronic Communications Privacy Act
, [ECPA]) the ACLU still could not disclose which ISP was served with the request to produce documents.
This prompted the ACLU to challenge the secrecy law itself, and they sued to invalidate the NSL provision of the ECPA. Introduced by U.S. Senator
Patrick Leahy
of Vermont
and enacted in 1986, the bill permitted the FBI to obtain customer records from telephone and Internet companies in terrorism investigations.
The ACLU argued that the NSL violated the First and Fourth Amendments
to the United States Constitution
because
The government agreed in principle with the ACLU's claim that the recipient of the subpoena can challenge it in court, and because the matter of specified judicial process remained in question and directly affected other present and future cases, the Court found the NSL section to be in need of review.
unconstitutional. It reasoned that it could not find in the provision an implied right for the person receiving the subpoena to challenge it in court as is constitutionally required.
The finding of unconstitutionality essentially dismisses any claimed presumptive legal need for absolute secrecy in regard to terrorism cases. The USA PATRIOT Act is affected only if the limits on NSLs in terrorism cases also apply to non-terrorism cases such as those authorized by the Act.
The government was expected to appeal the ruling to the Supreme Court
, and until the district court ruling is reviewed, the secrecy procedures of the NSL remain in place.
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
) is a lawsuit
Lawsuit
A lawsuit or "suit in law" is a civil action brought in a court of law in which a plaintiff, a party who claims to have incurred loss as a result of a defendant's actions, demands a legal or equitable remedy. The defendant is required to respond to the plaintiff's complaint...
filed on behalf of a formerly unknown ISP owner by the American Civil Liberties Union
American Civil Liberties Union
The American Civil Liberties Union is a U.S. non-profit organization whose stated mission is "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States." It works through litigation, legislation, and...
against the U.S. federal government
Federal government of the United States
The federal government of the United States is the national government of the constitutional republic of fifty states that is the United States of America. The federal government comprises three distinct branches of government: a legislative, an executive and a judiciary. These branches and...
.
In 2010, it was revealed that John Doe was in fact Nicholas Merrill
Nicholas Merrill
Nicholas Merrill is the founder of Calyx Internet Access and the Calyx Institute. He was the first person to file a constitutional challenge against the National Security Letters statute in the USA PATRIOT Act. After receiving a National Security Letter from the FBI, he sued the FBI and Department...
of Calyx Internet Access. Merrill was subject to National Security Letter
National Security Letter
A National Security Letter is a form of administrative subpoena used by the United States Federal Bureau of Investigation and reportedly by other U.S. Government Agencies including the Central Intelligence Agency and the Department of Defense. They require no probable cause or judicial oversight...
s (NSLs) from the Federal Bureau of Investigation
Federal Bureau of Investigation
The Federal Bureau of Investigation is an agency of the United States Department of Justice that serves as both a federal criminal investigative body and an internal intelligence agency . The FBI has investigative jurisdiction over violations of more than 200 categories of federal crime...
requiring the release of private information and under a gag order
Gag order
A gag order is an order, sometimes a legal order by a court or government, other times a private order by an employer or other institution, restricting information or comment from being made public.Gag orders are often used against participants involved in a lawsuit or criminal trial...
forbidding any public discussion of the issues. In September 2004, Judge Victor Marrero
Victor Marrero
Victor Marrero is a United States federal judge appointed to the United States District Court for the Southern District of New York by President Bill Clinton in 1999...
of the United States District Court for the Southern District of New York
United States District Court for the Southern District of New York
The United States District Court for the Southern District of New York is a federal district court. Appeals from the Southern District of New York are taken to the United States Court of Appeals for the Second Circuit The United States District Court for the Southern District of New York (in case...
struck down the NSL provisions of the USA PATRIOT Act
USA PATRIOT Act
The USA PATRIOT Act is an Act of the U.S. Congress that was signed into law by President George W. Bush on October 26, 2001...
. This prompted Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
to amend the law to allow limited judicial review
Judicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
of NSLs, and prompted the government to appeal the case to the United States Court of Appeals for the Second Circuit
United States Court of Appeals for the Second Circuit
The United States Court of Appeals for the Second Circuit is one of the thirteen United States Courts of Appeals...
. The appeal was dismissed by Doe I v. Gonzales, 449 F.3d 415 (2d Cir. 2006) because Congress amended Section 2709 in the USA PATRIOT Improvement and Reauthorization Act of 2005,
On the recommendation of the Second Circuit, the district court considered the amended law in 2007, in Doe v. Gonzales
Doe v. Gonzales
John Doe v. Alberto R. Gonzales, was a case in which the American Civil Liberties Union along with the Library Connection and some librarians challenged Section 2709 of the Patriot Act. John Doe was the recipient of a National Security Letter that requested all information associated with one of...
. On September 6, 2007, Judge Marrero struck down the NSL provision of the revised Act, ruling that even with limited judicial review granted in the amended law, it was still a violation of separation of powers under the United States Constitution
Separation of powers under the United States Constitution
Separation of powers is a political doctrine originating from the United States Constitution, according to which the legislative, executive, and judicial branches of the United States government are kept distinct in order to prevent abuse of power. This U.S...
and the First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
. This is not yet enforced, pending a possible government appeal.
Challenge of the lawsuit and arguments
Secrecy
Secrecy is the practice of hiding information from certain individuals or groups, perhaps while sharing it with other individuals...
rules involved, the government would not let the ACLU disclose they had even filed a case for nearly a month, after which they were permitted to release a heavily redacted
Redaction
Redaction is a form of editing in which multiple source texts are combined and subjected to minor alteration to make them into a single work. Often this is a method of collecting a series of writings on a similar theme and creating a definitive and coherent work...
version of the complaint (shown right). According to government secrecy rules (the National Security Letter provision, [Section 2709] of the 1986 Electronic Communications Privacy Act
Electronic Communications Privacy Act
The Electronic Communications Privacy Act is a United States law.- Overview :The “electronic communication” means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or...
, [ECPA]) the ACLU still could not disclose which ISP was served with the request to produce documents.
This prompted the ACLU to challenge the secrecy law itself, and they sued to invalidate the NSL provision of the ECPA. Introduced by U.S. Senator
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
Patrick Leahy
Patrick Leahy
Patrick Joseph Leahy is the senior United States Senator from Vermont and member of the Democratic Party. He is the first and only elected Democratic United States Senator in Vermont's history. He is the chairman of the Senate Judiciary Committee. Leahy is the second most senior U.S. Senator,...
of Vermont
Vermont
Vermont is a state in the New England region of the northeastern United States of America. The state ranks 43rd in land area, , and 45th in total area. Its population according to the 2010 census, 630,337, is the second smallest in the country, larger only than Wyoming. It is the only New England...
and enacted in 1986, the bill permitted the FBI to obtain customer records from telephone and Internet companies in terrorism investigations.
The ACLU argued that the NSL violated the First and Fourth Amendments
Fourth Amendment to the United States Constitution
The Fourth Amendment to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause...
to the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
because
- Section 2709 failed to spell out any legal process whereby a telephone or Internet company could try to oppose an NSL subpoena in court and
- Section 2709 prohibited the recipient of an NSL subpoena from disclosing that he had received such a request from the FBI, and outweighs the FBI's need for secrecy in counter-terrorism investigations.
The government agreed in principle with the ACLU's claim that the recipient of the subpoena can challenge it in court, and because the matter of specified judicial process remained in question and directly affected other present and future cases, the Court found the NSL section to be in need of review.
Court finding
The Court subsequently found section 2709 of the Electronic Communications Privacy ActElectronic Communications Privacy Act
The Electronic Communications Privacy Act is a United States law.- Overview :The “electronic communication” means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or...
unconstitutional. It reasoned that it could not find in the provision an implied right for the person receiving the subpoena to challenge it in court as is constitutionally required.
The finding of unconstitutionality essentially dismisses any claimed presumptive legal need for absolute secrecy in regard to terrorism cases. The USA PATRIOT Act is affected only if the limits on NSLs in terrorism cases also apply to non-terrorism cases such as those authorized by the Act.
The government was expected to appeal the ruling to the Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
, and until the district court ruling is reviewed, the secrecy procedures of the NSL remain in place.