Citation Edit

Doe v. Ashcroft, 334 F.Supp.2d 471 (S.D.N.Y. 2004) (full-text).

Factual Background Edit

This lawsuit was filed on behalf of an unknown party by the American Civil Liberties Union against the U.S. federal government. The unknown party, an Internet service provider, was subject to National Security Letters (NSLs) from the Federal Bureau of Investigation requiring the release of private information under a gag order forbidding any public discussion of the issues.

Trial Court Proceedings Edit

In September 2004, a trial court 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 file an appeal.

Appellate Court Proceedings Edit

The appeal was dismissed in Doe I v. Gonzales[1] because Congress amended Section 2709 of the USA PATRIOT Improvement and Reauthorization Act of 2005.

Subsequent Trial Court Proceedings Edit

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 the separation of powers under the U.S. Constitution and the First Amendment. This is not yet enforced, pending a possible government appeal.

Challenge of the lawsuit and arguments Edit

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. According to government secrecy rules (the National Security Letter provision, [Section 2709] of the 1986 Electronic Communications Privacy Act, 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 U.S. Constitution 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 Edit

The Court subsequently found section 2709 of the Electronic Communications Privacy Act 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 U.S. Supreme Court, and until the district court ruling is reviewed, the secrecy procedures of the NSL remain in place.


  1. 449 F.3d 415 (2d Cir. 2006).

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