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Police blotter: Patriot Act wins a round

In this week's episode, library group loses emergency appeal to U.S. Supreme Court related to FBI's demand for Internet records.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
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Declan McCullagh
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"Police blotter" is a weekly report on the intersection of technology and the law. This episode: The U.S. Supreme Court rejects an emergency appeal from a library organization regarding the Patriot Act.

What: A library organization asks the U.S. Supreme Court to grant an emergency appeal to lift a gag order related to the FBI's request for Internet records under the Patriot Act.

When: Decided on Oct. 7 by Justice Ruth Bader Ginsburg, who hears emergency appeals from the Second Circuit Court of Appeals in New York.

Outcome: Ginsburg refuses to step in, saying the Second Circuit should handle the case for now.

What happened: When Congress approved the Patriot Act in the frenzied legislative response to the Sept. 11, 2001, attacks, the FBI received new powers to send secret National Security Letters (NSLs) that demand business records (view related PDF).

Until that time, NSLs could be sent only when an investigation was directly related to international terrorism. Thanks to Section 505 of the Patriot Act, NSLs now can be used more broadly (view related PDF), and individual FBI agents received the power to issue them.

Recipients are prohibited by law from disclosing that they received an NSL, even to their attorney: "No wire or electronic communication service provider...shall disclose to any person that the Federal Bureau of Investigation has sought or obtained access to information." One court has already ruled such a law is an unlawful gag order.

An unnamed member of the American Library Association received an NSL (view PDF of the NSL) demanding "any and all subscriber information, billing information, and access logs of any person or entity" using a specific Internet Protocol address during a certain time.

In response, the organization filed a lawsuit claiming 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 Second Circuit didn't.

Ginsburg rejected the library group's request to lift its gag order, saying that the Second Circuit was moving quickly--oral arguments are set for Nov. 2--and that it was premature to intervene. (The Bush administration has urged Congress to keep Section 505 of the Patriot Act and further expand police powers.)

Excerpt from Ginsburg's opinion: "Although the (library organization's) arguments are cogent, I have taken into account several countervailing considerations in declining to vacate the stay kept in place by the Second Circuit pending its disposition of the appeal. I am mindful, first, that interference with an interim order of a court of appeals cannot be justified solely because a circuit justice disagrees about the harm a party may suffer. Respect for the assessment of the court of appeals is especially warranted when that court is proceeding to adjudication on the merits with due expedition."