Thursday, May 25, 2006

Change in the Law. Congress passed a statute (18 U.S.C. 2709) that allows the FBI to issue National Security Letters, i.e., administrative subpoenas, to internet service providers (ISPs) that allows the FBI to gain access to subscriber information or electronic communication transaction records held by the ISP when that information is relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities. Two ISPs challenged the statute. The district courts ruled on the constitutionality of the statute, but, in the interim, Congress amended the statute, changing some of the relevant provisions.

With regard to the first ISP, the Second Circuit held that because the statute had been changed to provide for pre-enforcement judicial review, the ISP's Fourth Amendment claim no longer existed. That portion of the appeal was declared moot and the part of the district court's decision on that issue was vacated.

With regard to the First Amendment clains raised by the ISP, the statute originally did not allow the ISP to seek counsel in that it required the ISP not to disclose the existence of the subpoena to anyone. The statute was amended to allow talking to an attorney with respect to the request. The ISP, however, maintained that the amended statute still violated its First Amendment rights. The Second Circuit held that it should not decide the issue. It vacated the portion of the district court's decision relating to that issue and remanded the case to the district court for furhter proceedings, including possible new pleadings.

With respect to the second ISP, which dealt with the portion of the statute forbidding the ISP from revealing that it is a recipient of such a subpoena, the district court had granted an injunction. The government has now conceded that the ISP can reveal its identity renders the appeal moot. The Court did not vacate the decision because it was presumptively correct and the valuable to the legal community as a whole.

The decision in Doe v. Gonzales can be found here.

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