Big Brother Tries to Muscle ISPs

wired.com
Big Brother Tries to Muscle ISPs
Associated Press

WASHINGTON -- The Bush administration asked a federal appeals court
Friday to restore its ability to compel Internet service providers to
turn over information about their customers or subscribers as part of
its fight against terrorism.

The legal filing with the 2nd Circuit U.S. Court of Appeals in New York
comes amid a debate in Congress over renewal of the Patriot Act and
whether to expand the FBI's power to seek records without the approval
of a judge or grand jury.

U.S. District Judge Victor Marrero of New York last year blocked the
government from conducting secret searches of communications records,
saying the law that authorized them wrongly barred legal challenges and
imposed a gag order on affected businesses.

The ruling came in a lawsuit by the American Civil Liberties Union and
an internet access firm that received a national security letter from
the FBI demanding records. The identity of the firm remains secret.

The government was authorized to pursue communications records as part
of a 1986 law. Its powers were enhanced by the Patriot Act in 2001.


The administration said the judge's ruling was off the mark because the
company did mount a legal challenge to the demand for records. "Yet in
this very case, the recipient of the national security letter did
precisely what the NSLs supposedly prevent recipients from doing," the
filing said.

The law's ban on disclosing that such a letter has been received also
is appropriate because of legitimate security concerns, the government
said.

But ACLU attorney Jameel Jaffer said the law does not contain a
provision to challenge the FBI's demand for documents. The ACLU and the
firm filed the lawsuit to challenge the law's constitutionality on the
grounds that it doesn't contain such a provision, he said.

"Most people who get NSLs don't know they can bring a challenge in
court because the statute doesn't say they can," he said. "No one has
filed a motion to quash in 20 years."

The ban on disclosure is so broad that the ACLU initially filed the
suit under seal and negotiated for weeks on a version that could be
released to the public.

Previously censored material released several months after Marrero's
ruling included innocuous material the government wanted withheld, the
ACLU said, including the phrase "national security" and this sentence
from a statement by an FBI agent: "I am a Special Agent of the Federal
Bureau of Investigation."

originally published May. 28, 2005