This lack of judicial oversight was at the core of Doe v. Ashcroft, a high-profile test of the usage of NSLs. Brought forward by an unnamed Internet Service Provider who had been served with NSLs, it challenged the constitutionality of the letters, specifically the non-disclosure provisions. Judge Victor Marrero of the Southern District of New York found on 28 September 2004, that NSLs violate the Fourth Amendment ("it has the effect of authorizing coercive searches effectively immune from any judicial process") and First Amendment. However, Judge Marrero issued a stay on his ruling pending the outcome of an appeal of his decision by the government.
In his ruling Judge Marrero wrote "All but the most mettlesome and undaunted NSL recipients would consider themselves effectively barred from consulting an attorney or anyone else who might advise them otherwise," and concluded, "as well as bound to absolute silence about the existence of the NSL...For the reasonable NSL recipient confronted with the NSL's mandatory language and the FBI's conduct related to the NSL, resistance is not a viable option."
Compelled by these findings, subsequent revisions to the USA PATRIOT Act have allowed for greater judicial review, as well as clarification and limitation to the non-disclosure clause. There remains no requirement to seek judicial review or approval prior to issuance of an NSL.
The government appealed Judge Marrero's decision in the 2nd circuit court of appeals which heard arguments from both sides and on 24 May 2006 issued a ruling dismissing the case as moot – returning it to the lower court due to subsequent changes in the USA PATRIOT Act enacted by Congress after the case was filed. In a concurring opinion, Judge Richard Cardamone of the 2nd U.S. Circuit Court of Appeals wrote that he suspected "a perpetual gag on citizen speech of the type advocated so strenuously by the government may likely be unconstitutional." and that a ban on speech and an unending shroud of secrecy concerning government actions "do not fit comfortably with the fundamental rights guaranteed American citizens" and could serve as a cover for official misconduct.
After having the case returned to his court for reconsideration in light of the revisions made to the USA PATRIOT Act, on September 6, 2007, Judge Victor Marrero struck down the parts of the law that allowed the FBI to compel companies to provide customer records without court authorization and forbade the companies from telling the customers or anyone else what they had done. In his 103-page opinion, Judge Marrero wrote that the law permitting such NSLs was “the legislative equivalent of breaking and entering, with an ominous free pass to the hijacking of constitutional values.” Marrero said the indefinite gag order associated with NSLs violated the First Amendment, the lack of judicial oversight or review was contrary to the separation of powers guarantee, and that the secrecy requirement was so intertwined with the rest of the provision regarding NSLs that the entire provision was unconstitutional. Judge Marrero delayed enforcing his decision ordering the FBI to desist with further NSLs for 90 days pending an appeal by the government. The government appealed the decision and oral argument was heard on August 27, 2008. The case, now known as Doe v. Holder (the current Attorney General). On Monday, December 15, 2008, the appeals court supported the lower court's ruling.
Another effect of Doe v. Ashcroft has been greater congressional oversight. The above mentioned revisions to the PATRIOT Act also included requirements for semi-annual reporting to Congress. Although the details are classified, a non-classified count of NSLs issued is also required. On April 28, 2006, the Department of Justice reported to the House and Senate that in calendar year 2005, "the Government made requests for certain information concerning 3,501 United States persons pursuant to NSLs. During this time frame, the total number of NSL requests… for information concerning U.S. persons totalled 9,254." A 2007 DOJ audit of the FBI's use of the National Security Letter found that the FBI actually issued 39,346 requests on 10,232 non-U.S. plus 6,519 U.S. persons in 2003, 56,507 requests for 2004 (8,494 non-U.S., 8,943 U.S. persons), and 47,221 requests in 2005 (8,536 non-U.S., 9,475 U.S. persons). Moreover, review of a sample of NSLs in that DOJ report found that twenty-two percent of reviewed NSLs were not included in these higher estimates, suggesting that the true numbers are even higher.
In 2010 a partial lift of the gag order was given, and John Doe was revealed as Nicholas Merrill, of Calyx Internet Access. He has since started a nonprofit for the purposes of educating and researching privacy issues.
Read more about this topic: National Security Letter