The Bush administration plans to fight a recent court decision that threatens to curb its powers to obtain logs of Americans' Internet activities without court approval.
As expected, the U.S. Department of Justice on Monday filed a notice that it plans to appeal a September federal court ruling that declared the surveillance tactic, known as a national security letter, to be unconstitutional. The government's filing was one paragraph long and came with no additional comment, according to the Associated Press.
The power to use national security letters has been around for a few decades, but it was effectively expanded by the controversial Patriot Act after the September 11 terrorist attacks. The law allows FBI agents to send Internet service providers secret demands for logs of things like e-mail correspondence and search queries, without obtaining a judge's approval in advance. That authority, which can also be used to obtain bank and telephone records, is only supposed to be used for investigations related to terrorism.
The letters are typically accompanied by gag orders restricting the recipient's ability to disclose their contents. In the case at hand, U.S. District Judge Victor Marrero in New York ruled those gag orders aren't "sufficiently narrowly tailored" and therefore trample on the First Amendment.
Unlawful use of national security letter powers by the FBI has already been documented by internal auditors. Earlier this year, the Justice Department inspector general issued a report documenting "serious misuse" of the technique, drawing congressional ire but no concrete penalties, since unlawful of national security letters isn't technically a felony.
The American Civil Liberties Union filed the lawsuit challenging the national security letters on behalf of an anonymous Internet service provider. The president of that unnamed company spoke out against the gag order provision in a statement released by the ACLU on Monday.
"Perhaps the most harmful consequence of the gag provisions is that they make it difficult or impossible for people like me--people who have firsthand experience with the NSL statute--to discuss their specific concerns with the public, the press, and Congress," the "John Doe" plaintiff said in a statement. "This seems to be counterintuitive to everything I assumed about this country's commitment to free speech and the value of political discourse."
Jameel Jaffer, director of the ACLU's National Security Project, said he was confident the appellate court would back the lower court's conclusions.