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Shhhh. U.S. appeals USA PATRIOT loss
Kevin Poulsen, SecurityFocus 2005-02-04

The U.S. Justice Department is appealing a decision that trimmed back the FBI's powers under the USA PATRIOT Act. But in a case already noted for unusual secrecy, the very fact of the government's appeal was kept under seal for over two months.

Last year the ACLU, representing an anonymous ISP, mounted a constitutional challenge to the FBI's authority to issue "national security letters" that force a communications provider to hand over sensitive customer information to the bureau without a court order, and to keep the matter a secret for all time.

In September, New York federal judge Victor Marrero ruled that the secrecy requirements made the law unconstitutional, because it cheated the recipient of the right to challenge the FBI in court, and of the First Amendment right to free speech. Marrero revoked the FBI's national security letter authority, but deferred the force of the ruling until the government could appeal to the 2nd Circuit Court of Appeals.

The Justice Department made no secret of the fact that it intended to do just that. But when government lawyers filed their appeal notice last November 23rd, they did it under seal. It remained a secret until Wednesday, when the court ordered it released to the public docket, calling its sealing a mistake.

It's all par for the course in case steeped in secrecy from the outset, says ACLU attorney Ann Beeson. "There was a very strict procedure for the filing of all the documents in the district court," says Beeson. "The default rule was that everything had to be filed under seal."

Beeson says she's hoping for more transparency in the 2nd Circuit when the appeal is argued later this year. "That issue, of how the documents will be filed going forward in the case, I'm certain is an issue that we're going to be discussing with the government and the court," she says. So far, the ACLU's plaintiff has been identified only as "John Doe." And although some filings in the underlying case were made public, they were first subject to heavy government censorship on national security grounds.

In one of the documents released last year, the Justice Department even blacked out a quote from a 1972 Supreme Court decision, reading in part: "The danger to political dissent is acute where the Government attempts to act under so vague a concept as the power to protect 'domestic security.'" Judge Marrero later ordered the quote restored.

The FBI has used national security letters since the 1980s, but they were limited to obtaining records of suspected terrorists or spies. The 2001 USA PATRIOT Act expanded the bureau's reach to cover anyone's records, provided it's part of a terrorism or espionage investigation.

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Shhhh. U.S. appeals USA PATRIOT loss 2005-02-07
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Shhhh. U.S. appeals USA PATRIOT loss 2005-02-10
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