Section 215 of the USA PATRIOT Act and National Security Letters: An Update (October 2005)
By Neema Trivedi
FEPP commentaries in May and August of 2003 discussed various provisions of the “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism” (“USA PATRIOT”) Act.1 This commentary is an update on two of those provisions.
The first is §215,2 which gives the FBI the power to demand personal transaction, membership, and other records, including library and bookstore logs, that may be related to "an investigation to protect against international terrorism or clandestine intelligence activities." Section 215 imposes a gag rule on any employee or agent from whom such records are demanded. Section 215 orders require authorization from a Foreign Intelligence Surveillance Act (“FISA”) court,3 but only the government gets to appear; there is no opportunity for the subject of a potential search or seizure to object.
Section 215 is supplemented by §505, which expands the use of an instrument that pre-dates the USA PATRIOT Act: the National Security Letter (“NSL”). Like §215 orders, NSLs issued pursuant to §505 prohibit recipients from disclosing the existence or subject of the letter to anyone except those necessary to comply with its demands, and there is no provision for petitioning a court to set aside the letter.4 NSLs are often used instead of §215 orders to solicit information from bookstores and libraries because unlike §215 orders, they don’t require approval from a FISA court.
This commentary discusses the First Amendment implications of granting law enforcement agencies such expansive authority in the conduct of counter-terrorism investigations.
Section 215 of the USA PATRIOT Act
Sixteen sections of the USA PATRIOT Act are “sunset” provisions, set to expire on December 31, 2005.5 Section 215 is one of those provisions and is thus currently the subject of much debate in Congress. Section 215 amends and expands the powers of the Justice Department under FISA. It grants the Department authority to require access to “any tangible things,” including the medical, business, bookstore and library records of any person in connection with a counter-terrorism investigation. Whether the records are even relevant to the investigation is determined at the discretion of individual Justice Department officials with no oversight from superiors or judicial bodies. The only limitation is that "such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution."
While FISA courts must authorize the issuance of a §215 order, the investigator need not present any factual basis for the request; he or she need only specify that the records concerned are "sought for an investigation to protect against international terrorism or clandestine intelligence activities.”6 Authorization thus becomes a formality rather than a real check on §215 powers. Even a traditionally conceived “relevance” standard would be an improvement over the current procedure because it would allow for judicial review. By contrast, as of now, an FBI agent must merely self-certify he or she is acting in good faith.
One can surmise the narrow circumstances under which a FISA warrant request would actually be denied: only when an FBI agent explicitly states that she seeks a warrant to target individuals for First Amendment-protected speech or for domestic criminal activities as opposed to terrorism or espionage. In practice, such a forthright confession of ill-intent rarely occurs, but it is, ironically, the only circumstance that protects U.S. citizens under the FISA system.
Furthermore, the statute does not even specify that the individual whose records are searched and seized needs to be suspected of criminal activity. The lack of any such specification is particularly problematic in the case of non-citizens, including students in the U.S. on F-1 visas. The already-low bar of relevance that FBI officials must self-certify is made even lower in the case of non-citizens. In addition to generally authorizing seizures of information in investigations "to protect against international terrorism or clandestine intelligence activities," §215 also allows seizures “to obtain foreign intelligence information not concerning a United States person.”7 This vaguely defined purpose leaves non-citizens completely unprotected because “foreign intelligence information” could be broadly construed to include any information or records pertaining to foreign nationals by virtue of their citizenship status in a foreign country and thus their inherent connection to that country.
Section 215 has sparked opposition from the free speech community, especially librarians and booksellers, who feel that it causes a chilling effect among their patrons. Readers may feel the need to self-censor what books they buy or borrow to steer clear of government suspicion in case their records are turned over to investigators. As Nancy Kranich explained in her 2003 commentaries, §215 could be used unfairly to target individuals trying to understand the events of 9/11 by seeking out information on Iraq, terrorism, or Islam. While these individuals may have no connection to terrorist activities, their choice of reading material could make them subject to investigation.
In Congress, there is also concern over this provision of the USA PATRIOT Act, and several legislators have introduced bills that either do away with the provision altogether or seek to alleviate the ways in which §215 powers could be abused by counter-terrorism officials. For example, in June of this year, an amendment to a Justice Department appropriations bill was introduced by Representative Bernie Sanders (I-VT) and was passed in the House. The amendment prohibits the Department from using any of the appropriated funds to conduct §215 searches of library and bookstore records.8
While this bill would not prevent the issuance of §215 orders since FBI officials still have access to discretionary funds, it shows that there is at least some acknowledgment in the House that the provision could be subject to abuse. Section 215 is also up for renewal, and critics hoped that after evaluating its usefulness (or lack thereof), Congressional leaders would make substantive changes to it in the course of reauthorization.
But on July 21, the House of Representatives passed the “USA PATRIOT and Terrorism Prevention Reauthorization Act of 2005” (H.R. 3199) by a vote of 257-171.9 In it, the House moved away from the position it took when passing the Sanders appropriation bill and instead made very little substantive change to §215. The House bill does, however, contain an amendment introduced by Representative Flake (R-AZ) that was passed 402-26, which requires that the FBI director must personally approve all FBI requests for library or bookstore records.10
H.R. 3199 also made permanent fourteen of the Act’s sixteen provisions. Although an amendment was introduced that would sunset the provisions after an additional four years, making them subject to re-evaluation at that time, the amendment was defeated 218-209. Representative Sensenbrenner (R-WI) stated that sunset provisions were no longer necessary because there was “‘no actual record of abuse and vigorous oversight.’”11 The irony of Sensenbrenner’s statement is that the provision itself prevents the creation of such a record because it forbids recipients of orders from reporting abuses.
While this amendment does provide for some increased oversight, the bill on a whole is still problematic in that a recipient of a §215 order has no judicial recourse to challenge the order. Under the Fourth Amendment, searches and seizures must ordinarily be authorized by the judiciary, but §215 allows law enforcement to get authorization from the FISA court in an ex parte (literally, “without party,” meaning only one party is present) hearing. Once the FISA court has approved the order, the recipient has no realistic way to challenge that decision and is forced to obey. (There is a provision for challenging a §215 order in the FISA court, but it is so narrow as to be meaningless.) The House bill does not address this problem and thus continues to prevent a proper judicial check on executive power.
The Senate passed its own version of a USA PATRIOT Act reauthorization bill on July 29, 2005, and critics of §215 much prefer S. 1389 to its companion bill, H.R. 3199. The Senate bill requires that law enforcement show a factual basis for issuing an order and limits searches to individuals who are suspected of criminal activity or those in contact with a suspect in an ongoing investigation.12 By contrast, the language of the House bill is similar to that of the original 2001 PATRIOT Act, both of which allow the FBI to search the records of anyone it thinks may be relevant to an ongoing investigation, even if he or she is not suspected of involvement in a crime.13
S. 1389 also provides other safeguards that could minimize abuse and overreaching on the part of law enforcement officials. First, it gives people who receive §215 orders the right to consult an attorney and to challenge the order in the FISA court. Second, it requires that officials seeking permission to issue a §215 order give a particularized description to the FBI Director or Deputy Director of the tangible items being sought.14 Third, since the provision cannot be effectively monitored without certain disclosure requirements, the Senate bill would require the Department of Justice to report the number of orders issued to libraries and bookstores each year.15 Fourth, the Senate bill only reauthorizes the provision until 2009, as opposed to making it permanent, as was done in the House bill.16
The two houses will meet in a conference committee to resolve differences between the two reauthorization bills. The American Library Association and other critics of the section as it stands have expressed support for the Senate bill. Currently, a “Dear Conferees” letter is being circulated through Congress by Senators Craig and Durbin and Representatives Sanders and Otter, which urges their colleagues to support the Senate bill. The ALA is also encouraging librarians and other interested persons to write letters to their senators and representatives urging them to sign the “Dear Conferees” letter.17
There is also a pending constitutional challenge to §215 in a Michigan federal court. The plaintiffs in Muslim Community Association of Ann Arbor v. Ashcroft contend that “by seriously compromising the rights to privacy, free speech, and due process," §215 violates the First, Fourth, and Fifth Amendments to the Constitution.18 Because §215 allows law enforcement to seize the records of political and religious organizations, civic groups fear that their members will feel less comfortable affiliating with a particular religion or political viewpoint. The Muslim Community Association, for example, notes that since the passage of the PATRIOT Act, “some MCA members are afraid to attend mosque, to practice their religion, or to express their opinions about religious and political issues.”19 The ACLU serves as counsel in the ongoing case and argues that the “‘government has an ugly history of using its investigative powers to squelch dissent. … We saw it during the Japanese internments of World War II, the Red Scare of the 1950’s and the civil rights movement of the 1960’s, and now we see it in the post-9/11 investigations and detention of Arabs and Muslims.’”20
The ACLU also issued a Freedom of Information Act (FOIA) request to the Department of Justice (DOJ) in 2002 in order to learn how prevalent the use of §215 orders had been in the year following the passage of the USA PATRIOT Act. The DOJ only made public several blacked-out pages, and refused to say how many orders had been issued. In September of 2003, Attorney General Ashcroft stated that the provision had never been used. However, after a second FOIA request, the ACLU learned that the FBI had sought a §215 order only a few weeks after Ashcroft’s announcement. After much controversy following this discovery, the FBI finally conceded that it had used the provision.21
Subsequently, the government submitted a notice in the Michigan litigation that as of March 30, 2005, §215 had been used 35 times. According to that notice, however, Attorney General Alberto Gonzales testified to Congress that none of those requests were for library, bookstore, or medical records.22 Gonzales’ testimony regarding §215 orders is somewhat misleading, since FISA warrants are not the government’s only way, or even the easiest way, to obtain private records. Although only 35 requests were made under §215, that statistic does not include the hundreds of NSLs issued to businesses, libraries, and other institutions.
Section 505 of the USA PATRIOT Act – The National Security Letter
The National Security Letter was originally authorized under three statutes, 18 U.S.Code §2709, 12 U.S.Code §3414, and 15 U.S.Code §1681u.23 The statute most relevant to First Amendment rights for library and bookstore users is §2709, which gives counterintelligence officials access to telephone toll and electronic transactional records held by “a wire or electronic communication service provider.” Section 2709(c) specifically prohibits the disclosure by a recipient of the contents or existence of an NSL.
Although the National Security Letter was authorized before the USA PATRIOT Act, §505 of the Act amends and expands the statutes listed above. First, it allows an NSL to be issued through an FBI office, without approval from headquarters. Second, it merely requires that the information be "sought for the conduct of an authorized investigation to protect against international terrorism or clandestine intelligence activities," rather than requiring that the government actually have “reason to believe” that the person being investigated is actually involved in terrorist activity. Third, the records requested need not pertain to any foreign power or its agents.24
Basically, §505 and the underlying statutes it amends make it easier for counter-terrorism officials to issue NSLs to proprietors of various businesses and institutions. In response to an FOIA request regarding NSLs, the DOJ released a series of pages with blacked-out entries that suggest that the FBI had issued hundreds of NSLs in the 14-month period after October 2001. However, the DOJ refuses to make public the exact number.25
Section 2709 (as amended by §505 of the USA PATRIOT Act) has come under fire from civil liberties advocates and library and bookstore proprietors. The NSL has been subject to both legislative and judicial challenge, so its future remains unclear. For example, H.R. 1526, one of the so-called “SAFE Acts,” proposes that counterintelligence officials be prohibited from addressing NSLs to libraries.26 That bill, introduced by Representative Otter (R-ID), was referred to a House subcommittee in the spring, and is still pending.
The Senate’s reauthorization bill mentioned above, S. 1389, also contains a provision that would allow recipients of §2709 NSLs to disclose the receipt and content of the letter to an attorney and would permit limited court challenges to the letters.27 Section 505, however, is not a sunset provision, so although the current Senate bill allows for increased oversight of NSL authority, the provision itself need not be reauthorized. Even if civil liberties advocates obtain a legislative victory on §215 and are able to significantly narrow law enforcement authority to issue §215 orders, this may not change the landscape in practice. FBI and other counterintelligence officials would still have power, under §505, to issue an NSL and would thus continue to have access to personal records.
In part because of the inability to question NSL authority through current legislation, advocates have launched judicial challenges to §2709. In Doe v. Ashcroft,28 one of the plaintiffs, who worked for an Internet Service Provider (“ISP”), was served with an NSL. He challenged the letter, arguing that §2709 violated both the First and Fourth Amendments. Federal Judge Victor Marrero agreed, holding that the prohibition on disclosure was not narrowly tailored enough to further the government’s interest in protecting its investigation and thus violated the First Amendment. Judge Marrero explained:
Democracy abhors undue secrecy, in recognition that public knowledge secures freedom. Hence, an unlimited government warrant to conceal, effectively a form of secrecy per se, has no place in our open society. … Under the mantle of secrecy, the self-preservation that ordinarily impels our government to censorship and secrecy may potentially be turned on ourselves as a weapon of self-destruction.29
The court also held that the NSL provision violated the Fourth Amendment as applied in this case, because it “effectively bars or substantially deters any judicial challenge”30 to the search and seizure. Categorizing the NSL as an administrative subpoena, the court cited a long history of Supreme Court doctrine that “makes clear that an administrative subpoena statute is consistent with the Fourth Amendment when it is subject to ‘judicial supervision’ and ‘surrounded by every safeguard of judicial restraint.’”31 The government’s appeal of this decision is pending in the Second Circuit Court of Appeals, with oral argument scheduled for October 30, 2005. (See "Patriot Act" Renewal Stalls in Congress for an update on this litigation.)
Most recently, a federal court in Connecticut ruled that §2709 was probably unconstitutional as applied to a librarian who received an NSL. The NSL directed one of the plaintiffs in Doe v. Gonzales “to provide to the [FBI] any and all subscriber information, billing information and access logs of any person” related to a counter-terrorism investigation. The NSL also required that Doe not reveal his identity or disclose the receipt or content of the letter.32 Unlike the New York case, which challenges both the authority to execute a search and seizure under §2709 (Fourth Amendment challenge) and the gag rule that the statute forces on an NSL recipient (First Amendment challenge), Doe v. Gonzales is only a First Amendment case.
In her decision granting the plaintiffs’ motion for a preliminary injunction, Judge Janet Hall acknowledged that courts must generally show deference to law enforcement on issues related to terrorism and subsequent investigations, but she also maintained that the judiciary has a rightful role in providing a check on executive powers. She stated: “‘the notion that the judiciary should abdicate its decision-making responsibility to the executive branch whenever national security concerns are present’ is extremely troubling.”33
The judge further asserted that “‘[W]hile the [executive’s] tasks include the protection of national security and the maintenance of the secrecy of sensitive information, the judiciary’s tasks include the protection of individual rights.’” She found that the non-disclosure provisions of §2709(c) were causing “irreparable harm” to Doe’s right to free speech because the current debate surrounding the renewal of the USA PATRIOT Act made it essential that Doe be allowed to reveal himself as an NSL recipient and participate in the ongoing debate in that capacity.34
Finally, the court ruled that the statute constituted both a prior restraint, because it “unquestionably prohibits speech in advance of it having occurred,” and a content-based restriction on Doe’s right to free speech because it “has the potential for becoming a means of suppressing a particular point of view.”35
The suppression of First Amendment rights can be justified in some contexts, if the request is narrowly tailored to advance a compelling state interest. In this and other related cases, the government claims that §2709 is necessary to maintain the integrity and confidentiality of counter-terrorism investigations. While the court agreed that compelling state interests may trump First Amendment rights, it found that, in this case, “the permanent gag provision compels the conclusion that § 2709(c) is not narrowly drawn to serve the government’s broadly claimed compelling interest of keeping investigations secret.”36
The court also found it problematic that there was no means to monitor the activities of law enforcement agencies and thus prevent abuses of the powers given to them under § 2709. She wrote:
The potential for abuse is written into the statute: the very people who might have information regarding investigative abuses and overreaching are preemptively prevented from sharing that information with the public and with the legislators who empower the executive branch with the tools used to investigate matters of national security.37
On September 20, 2005, a three-judge panel of the U.S. Court of Appeals for the Second Circuit granted a temporary stay of the lower court decision in Doe v. Gonzales. The panel ruled that without granting a stay, the government’s appeal would be moot since Doe’s identity and the contents of the NSL would be revealed as per the district court ruling. However, understanding the plaintiffs’ concerns that waiting too long could prevent Doe from being an active and meaningful participant in ongoing PATRIOT Act renewal debates, it set an expedited schedule for the appeal. ACLU lead lawyer Ann Beeson called the decision “‘extremely frustrating’” because “‘the government can say all they want about the Patriot Act,’ but not people like the plaintiffs who have firsthand knowledge of its reach.”38
Affirmance by the Second Circuit Court of Appeals in Doe v. Gonzales (2005) and Doe v. Ashcroft (2004) would be major victories, but the FBI would no doubt continue to issue NSLs. For most records, the FBI can simply use one of its regional offices that is not within the jurisdiction of the Second Circuit (New York, Vermont, and Connecticut).
Update: In March 2006, Congress amended the PATRIOT Act, providing a mechanism for court review of NSLs and their accompanying gag orders. The government announced shortly afterward that it would no longer oppose the injunction in the Connecticut case - that is, it was dropping its insistence on a gag order. In light of this concession, the Second Circuit dismissed the government's appeal of the Connecticut injunction as "moot."
The government tried to persuade the appeals court to vacate the Connecticut district court's decision as well, so that it would have no legal or precedential effect. This the court declined to do, noting that the government should not be able to circumvent the usual appellate process and overturn a decision it doesn't like simply by changing its mind and rendering the case moot.
The Second Circuit also found the government's appeal of the 4th Amendment ruling in the New York case to be moot, in light of the revisions to the law. It remanded the 1st Amendment issue back to the district court for reconsideration in light of the legislative revisions.39
Section 215 orders and National Security Letters are problematic instruments used by law enforcement officials who have become increasingly accustomed to having expanded powers without any proper checks on their authority. Sections 215 and 2709 have the effect of stifling what should be a lively and open debate about the reauthorization of the USA PATRIOT Act, by preventing those who know most about law enforcement activities and abuses from sharing that information with the public. In addition, demanding records from libraries and bookstores violates the privacy of patrons and could chill countless reading choices that are entirely unrelated to terrorist activities.
In the past few months, there has been legislative and judicial action that demonstrates a renewed appreciation on the part of some leaders for the system of checks and balances among the three branches of the government. Some legislators are responding to citizens’ concerns that provisions like §215 and §2709 are allowing vaguely defined national security interests to erode their civil liberties. Meanwhile, a few jurists are reclaiming the role of the courts as protectors of our constitutional rights.
Four years after 9/11, one would hope that the general public and the decision-makers in Washington D.C. would have gained enough perspective to realize that protecting the U.S. need not mean turning all citizens into potential suspects and stripping them of their rights. Instead, we must realize that it is time to plan rationally what the next step should be in the fight against terrorism and find ways to advance national security without jeopardizing our rights to read, research, and communicate without fear of government reprisal.
October 4, 2005
Thanks to Aziz Huq of the Brennan Center's Liberty & National Security Program for expert assistance.
1. Public Law 107-56 (2001), 2001 H.R. 3162, available at http://news.findlaw.com/cnn/docs/terrorism/hr3162.pdf (last visited 10/4/05).
2. 50 U.S.Code §1861 (a part of the Foreign Intelligence Surveillance Act), as amended by USA PATRIOT Act §215.
3. 50 U.S.Code § 1861 requires that §215 orders be approved by a secret FISA court. The existence of FISA courts is authorized by 50 U.S.Code §1803. Under §1803, the Chief Justice of the Supreme Court has the authority to appoint the eleven FISA court judges. Those judges serve for a maximum of seven years. This system, in practice, means that the FISA judges often reflect the ideological posture of the nominating Chief Justice. Former Chief Justice William Rehnquist, whose record showed him to be less rights-friendly than others on the bench, appointed all of the FISA court judges who have served since the passage of the PATRIOT Act. This will have further implications with the recent confirmation of Chief Justice John Roberts. Though little information about Roberts can be gleaned from his confirmation hearings, his viewpoints on rights, privacy, and national security probably do not depart significantly from those of his predecessor. This means that the FISA courts may continue to be constituted by judges, who like their nominators, believe in a broad conception of national security at the expense of individual rights and liberties.
4. NSLs are authorized by 18 U.S.Code §2709, 12 U.S.Code §3414, and 15 U.S.Code §1681u, as amended by USA PATRIOT Act §505. Update: Amendments in 2006, after two federal courts had ruled §2709 unconstitutional, provided for court review and clarified that the letter could be disclosed to an attorney. See "Patriot" Act Reforms Are Defeated (March 2006).
5. For a full list of the sunset provisions, see Charles Doyle, “USA PATRIOT Act Sunset: Provisions that Expire on December 31, 2005,” Congressional Research Service (CRS) Reports (June 10, 2004).
6. Public Law 107-56 (2001), 2001 H.R. 3162, §215.
7. P.L. 107-56, 2001 H.R. 3162. This language comes from 50 U.S.Code §1801, the FISA Act, which states that if the records sought are of a US person, the information must be “necessary” to an investigation, but if the records sought are of a non-US person, the information need only “relate” to an investigation.
8. H.AMDT. 280 (A033) to H.R. 2862, available at http://thomas.loc.gov/ (last visited 9/26/05). For more on this and other legislation, see the American Library Association’s “The USA PATRIOT Act & Libraries” website, http://www.ala.org/ala/washoff/WOissues/civilliberties/theusapatriotact/usapatriotact.htm (last visited 9/22/05).
9. H.R. 3199; available at http://thomas.loc.gov/ (last visited 9/26/05).
10. Id. For more information, see Ted Barrett, “House Approves Renewal of Patriot Act,” July 22, 2005, http://www.cnn.com/2005/POLITICS/07/21/patriot.act/ (last visited 9/22/05).
12. However, it is important to note that this limitation does not necessarily alleviate the problems created by the §215 provision. “In contact with” may still be broadly interpreted by law enforcement officials and the FISA court to include a large number of individuals that are entirely unconnected to criminal or terrorist activity.
13. S. 1389; H.R. 3199; available at http://thomas.loc.gov/ (last visited 9/26/05).
14. Id.; see also Charles Doyle, “USA PATRIOT Act Reauthorization Proposals and Related Matters in Brief,” Congressional Research Service (CRS) Reports (July 15, 2005), at p. 6.
15. The bill would requires that the Attorney General maintain a record of §215 orders. In April of every year, he would have to report to Congress and the Administrative Office of the U.S. Courts the number of orders granted, modified or denied, when the application involved: 1) library records; 2) records of any sale of books, journals, or magazines; 3) records of firearm purchases; 4) health records; or 5) taxpayer records. See S. 1389, §7(f)). In addition, S. 1389, like its companion House bill, would require that all FBI agents obtain written authorization from the Director or Deputy Director for §215 searches.
16. Id. For further summary of the Senate bill, see the ALA’s “USA PATRIOT Act and Intellectual Freedom” website, http://www.ala.org/ala/washoff/WOissues/civilliberties/theusapatriotact/usapatriotact.htm (last visited 9/22/05).
17. For a sample letter which you can use to contact your legislators, see the ALA site at: http://capwiz.com/ala/issues/alert/?alertid=7952636&type=CO (last visited 9/19/05).
18. Complaint, Muslim Community Association of Ann Arbor v. Ashcroft, Docket No. 03-72913 (E.D. Mich., filed 7/3/2003), ¶2.
19. Id., ¶77.
20. “PATRIOT Act Fears Are Stifling Free Speech, ACLU Says in Challenge to Law,” http://www.aclu.org/SafeandFree/SafeandFree.cfm?ID=14307&c=262 (last visited 9/23/05).
21. E-mail correspondence with Jameel Jaffer, ACLU staff attorney, 9/26/05.
22. Muslim Community Association of Ann Arbor v. Ashcroft, Docket No. 03-72913; Document 24-1 (filed 4/7/2005).
23. 18 U.S.Code §2709 requires all wire and electronic communications providers to give counterintelligence officials access to transaction records. This statute is the one used to justify access requests of library and bookstore records. 12 U.S.Code §3414 requires all banks to give counterintelligence officials access to all financial transaction records and personal information when they receive an NSL. 15 U.S.Code §1681u requires consumer reporting agencies to give access to personal information and consumer records when requested to do so by counterintelligence officials.
24. P.L. 107-56 § 505. For more information, see Charles Doyle, “The SAFE Acts of 2005: H.R. 1526 and S. 737 – A Sketch,” Congressional Research Service (CRS) Reports (May 9, 2005), at p. 4.
25. The blacked-out list of NSLs provided by the government is available at http://www.aclu.org/patriot_foia/FOIA/NSLlists.pdf (last visited 9/26/05).
26. H.R. 1526; available at http://thomas.loc.gov/ (last visited 9/26/05).
27. S. 1389; available at http://thomas.loc.gov/ (last visited 9/26/05). For more information, see CRS Reports (July 15, 2005), at p. 6.
28. Doe v. Ashcroft, 334 F. Supp.2d 471 (S.D.N.Y 2004).
29. Id. at 519-520.
30. Id. at 475.
31. Id. at 495, quoting Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186 at 217.
32. Doe v. Gonzales, 2005 WestLaw 2179634 (D. Conn., Sept. 9, 2005), at 3. John Doe is one of three plaintiffs. The ACLU is a second plaintiff, and the ACLU Foundation is both plaintiff and counsel in the case. Although Doe cannot reveal his name or the organization for which he works, a New York Times article reported that a close look at the court record indicates that he is an employee of “Library Connection” in Windsor, CT. (Alison Leigh Cowan, “Librarians Must Stay Silent In Patriot Act Suit, Court Says,” New York Times, Sept. 21, 2005, p. 2).
33. 2005 WestLaw 2179634 at 15, quoting In re Washington Post Co., 807 F.2d 383, 391 (4th Cir. 1986).
34. Id. at 16, quoting McGehee v. Casey, 718 F.2d 1137, 1149 (D.C.Cir. 1983); id. at 10.
35. Id. at 11, 13, quoting Forsyth County v. Nationalist Movement, 505 U.S. 123, 130-31 (1992).
36. Id. at 23.
37. Id. at 26.
38. Cowan, New York Times, Sept, 21, 2005, p. 2.
39. Doe v. Gonzales, 449 F.3d 415 (2d Cir. 2006).