Patriot Act Balancing Act

A ruling on gag orders in terrorism investigations falls short.

IT'S ALWAYS difficult to find the right balance between a citizen's right to be free from undue government intrusion and a government's duty to protect national security. U.S. District Judge Victor Marrero of the Southern District of New York, in his 103-page decision on national security letters (NSLs) last week, wasn't entirely successful.

National security letters are used for counterintelligence and counterterrorism probes and are most often served on Internet service providers, financial institutions and telecommunications companies. The letters require businesses to turn over to the government certain client information, such as telephone records or e-mail logs. Unlike subpoenas, NSLs do not require judicial approval, but they also cannot be used to obtain the content of calls or e-mails. Evidence acquired using NSLs often serves as the basis for warrant requests to the Foreign Intelligence Surveillance Court. We applauded Judge Marrero in 2004 when he struck down a breathtakingly broad gag order that permanently barred recipients of the letters from ever speaking about them. In response to that ruling, Congress amended the provision in 2005 as part of the Patriot Act reauthorization. It allowed the recipient of an NSL to challenge his gag order before a federal judge, and it gave extended oversight authority to the Justice Department inspector general, who earlier this year criticized the FBI for sloppy and inappropriate use of national security letters.

Judge Marrero rightly found the revised gag order still too restrictive and burdensome. The provision perversely requires that recipients prove a negative -- namely, that disclosure of the NSL will not endanger national security. And recipients can prevail only if a judge finds that the government acted in "bad faith" in seeking the gag order in the first place. But by finding that the nondisclosure provision constituted a "prior restraint" on recipients' First Amendment right to free speech, Judge Marrero mandated that government requests for secrecy be tested under a "strict scrutiny" analysis -- the toughest legal standard for the government to overcome. This does not give enough weight to the government's legitimate interest in keeping most -- if not all -- of these investigations under wraps, at least for a time.

Congress should give recipients a more realistic chance of prevailing while still respecting government imperatives. When challenging a gag order, a recipient should be forced to make a compelling argument about why secrecy is unnecessary, but the government should also be required to provide some evidence to a judge -- in private, if necessary -- why nondisclosure is reasonable. Congress should, in any case, reject any proposal that would allow NSL recipients to speak about the letters immediately and without explicit judicial authorization. Even a vague acknowledgment by an Internet provider or telephone company that it has received a national security letter could give a heads-up to suspects.