At issue in today's hearing are two challenges brought by the ACLU in New York and Connecticut regarding a surveillance provision that was dramatically expanded by Section 505 of the Patriot Act.
The Patriot Act, passed in 2001 in the wake of the terrorist attacks in New York City and Washington, D.C., on Sept. 11 of that year, requires public libraries, universities, Internet service providers and any other type of communication provider--including telephone companies--to comply with secret "national security letters," or NSLs, from the FBI. Those letters can ask for information about subscribers--including home addresses, what telephone calls were made, e-mail subject lines and logs of what Web sites were visited.
Companies or institutions that receive these letters are not suspected of any wrongdoing, but the Patriot Act provisions in question prevent them forever from telling anyone that the FBI demanded records.
The first case was brought by the ACLU on behalf of an anonymous Internet service provider. Judge Victor Marrero, a U.S. District Judge in the Southern District of New York,on Sept. 29, 2004, saying "democracy abhors undue secrecy." In the ruling, the court said that the unlimited gag imposed by the NSL law violates free speech rights under the First Amendment.
The court also said that the FBI's demands for records without giving recipients of NSLs an opportunity to test the validity of the request in front of a judge is a violation of the Fourth Amendment's protection against unreasonable searches and seizures.
In the Connecticut case, the ACLU is representing a member of the American Library Association that possesses sensitive information about library patrons, including circulation records and records relating to Internet usage. The ACLU argued that the gag law limits free speech, especially at a time when Congress is debating the expansion of the Patriot Act, which expires at the end of this year.
In its lawsuit, the organization said it had the right to describe its experience to Congress in general terms--without disclosing details of the NSL. A federal district court agreed that the First Amendment permitted such general disclosure, but the 2nd Circuit didn't.
The issue went all the way to U.S. Supreme Court Justice Ruth Bader Ginsburg, who, sending the decision back to the 2nd Circuit.
There is no specific timetable for the justices in the 2nd Circuit to hand down their decision.
"It's difficult to say how the court will rule," said Ann Beeson, associate legal director for the ACLU, who argued the case before the 2nd Circuit. "We just have to wait and see. We asked the court to decide the Connecticutt case first because it deals with a narrower legal question. The appeals process for the New York case (involving the ISP) could take much longer, because it deals with broader legal issues."
to renew the Patriot Act, it's considering ways to give recipients more options after receiving a national security letter from the FBI.
Under current law, recipients are legally prohibited from disclosing that they received an NSL even to their attorney.
One measure already approved by the U.S. House of Representatives permits the recipient to consult with an attorney, who can ask a court to modify an NSL if it's "unreasonable." A second bill being considered in the Senate, takes a similar approach.
Either version would, after being signed into law by President Bush, effectively halt the two lawsuits before the 2nd Circuit by rewriting the NSL procedures to make them less vulnerable in court. At the very least, the ACLU would have to start over and likely would face a more difficult legal battle.
Some civil libertarians have objected to both bills in Congress, saying that even after the changes, the FBI would still be able to send secret NSLs to Internet providers, casinos, car dealerships and many other institutions--without prior court approval and without any requirement that the investigation be related to terrorism.
A final version of the legislation is expected to be approved by the end of next month.