Security gag orders unconstitutional: ACLU

By Edith Honan

NEW YORK (Reuters) - A U.S. law that requires people who are formally contacted by the FBI for information to keep it a secret is unconstitutional, a top civil liberties group told a Manhattan federal court on Wednesday.

An FBI letter requesting information -- called a National Security Letter (NSL) -- is effectively a gag order because it tells the recipient the request must remain a secret, even though it needs no authorization by a judge, said Jameel Jaffer, an American Civil Liberties Union lawyer.

Recipients have the right to challenge the secrecy order in court under a 2006 congressional amendment to the NSL law.

But the law says that judges must defer to the FBI's view that secrecy is necessary, undermining the judiciary's check on the power of the executive branch, Jaffer said.

Government lawyers argued before U.S. District Judge Victor Marrero that the FBI's need to ensure that targets are unaware of a probe outweighs the free speech rights of NSL recipients.

The ACLU is fighting the government on behalf of an Internet access company that received an NSL.

The company filed suit in April 2004. In September 2004 Marrero found the NSL gag violated constitutional free speech rights and struck it down as unconstitutional.

The government appealed the ruling, but Congress amended the NSL provision in its reauthorization of the Patriot Act last year before an appeals court could hear the case.