American Civil Liberties Union V. Ashcroft - Challenge of The Lawsuit and Arguments

Challenge of The Lawsuit and Arguments

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 (shown right). According to government secrecy rules (the National Security Letter provision, 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 United States 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.