FBI Accused of Violating 1st Amendment

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The New York Sun

The American Civil Liberties Union today will ask an appeals court in Manhattan to rule that the Federal Bureau of Investigation’s use of so-called national security letters violates the First Amendment.

The FBI uses national security letters during terrorism and spy investigations, often to gather records about an individual’s Internet use or financial transactions from the companies that provide those services. A difference between these letters and a grand jury subpoena is that it can be a criminal offense for recipients of national security letters to discuss them at all.

That gag order is the focus of the ACLU’s lawsuit, which is scheduled for oral arguments today before a three-judge panel of the U.S. 2nd Circuit Court of Appeals. In court papers, the ACLU argues that the law permitting the national security letters “invests the FBI with sweeping censorial authority.”

A lower court judge, Victor Marrero, struck down the law last year, finding that the gag-order provision violated the First Amendment. Judge Marrero also ruled that the law did not give courts sufficient authority to decide in certain cases to allow a recipient of a national security letter to speak about it.

The FBI, which gained the authority to send national security letters in 1986, issued more than 47,000 of them in one recent year, according to court papers. The ACLU’s client, whose identity has not been disclosed, is described in court papers as an “Internet access and consulting business.”

“We have a plaintiff who for four years now has been prohibited from criticizing an investigation he believes is illegitimate,” the ACLU lawyer who will argue the case, Jameel Jaffer, said. “The problem with the statute is that it gives the FBI power to suppress speech that is critical of the FBI.”

Lawyers for the FBI, in court papers, argue that secrecy is often needed in counterterrorism investigations. Allowing recipients of national security letters to speak freely about what information the government is seeking could tip off suspects, allowing them to “take steps to evade detection,” the court papers say.

Furthermore, the FBI argues, “a private individual does not have a First Amendment right to disclose information about a secret government investigation.”


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