ACLU asks court to open secret government filing

The U.S. Department of Justice has secret reasons for ordering that an Internet service provider keep quiet about a subpoena seeking information about the ISP's customers.

The DOJ, defending against a lawsuit by the American Civil Liberties Union, filed a classified justification of its gag order on the unnamed ISP, telling the court that not even the ACLU or the ISP could see the reasons for the gag order, the ACLU said Wednesday.

The so-called national security letter (NSL) program, expanded under the USA Patriot Act of 2001, included a provision allowing the U.S. Federal Bureau of Investigation and other investigative agencies to issue subpoenas for records and data to ISPs and other companies, and order those firms to keep the subpoenas secret. Those gag orders were necessary to protect the integrity of terrorism investigations, the DOJ argued.

The ACLU is representing the unnamed ISP, referred to in court documents as John Doe.

"In a disturbing move, [the DOJ] submitted its justification entirely in secret -- in a secret, classified declaration that even we, Doe’s attorneys, can’t see," said Rachel Myers, an ACLU spokeswoman. "The government did not even file a redacted version of its secret affidavit or even an unclassified summary of what the secret affidavit says. Basically, the government is asking us just to trust that the gag is justified."

A DOJ spokesman said the agency would likely not have a comment on the ACLU's filings Wednesday.

The ACLU, in court filings Wednesday, asked a U.S. judge to let its lawyers see the DOJ's defense of the NSL subpoena.

"We obviously can’t respond meaningfully to arguments that we’re not even allowed to see," Myers said.

Last December, the U.S. Court of Appeals for the Second Circuit found that the NSL program's gag provisions violate the First Amendment of the U.S. Constitution guaranteeing free speech. However, the circuit court allowed some gag orders to remain in effect under court oversight, and the ACLU's case is back in U.S. District Court for the Southern District of New York.

The FBI's investigation in this case is more than five years old, and the agency has abandoned its demand for the ISP's records more than two years ago, Myers said.

She called the DOJ's continued secrecy under new President Barack Obama "disturbing, to say the least."

"The blanket of secrecy that cloaks the FBI's activities invites abuse of the intrusive NSL surveillance power," she added.

The IDG News Service is a Network World affiliate.