I meant to blog this last month, when the oral argument took place, but it slipped through the cracks. Still, I thought I’d mention it, since it’s such an interesting issue. From law.com (via How Appealing):
Second Circuit Judges Jon Newman, Guido [Calabresi] and Sonia Sotomayor expressed concern during oral arguments Wednesday that the statutory language of a key provision of the USA Patriot Act might be overly broad, potentially applying in instances where national security is not truly at stake.
The 2001 statute authorized the Federal Bureau of Investigation to issue National Security Letters (NSLs) to telecommunications carriers like phone companies and Internet service providers, compelling their cooperation in government investigations relating to counterterrorism and other national security efforts.
NSLs also carry a gag order prohibiting any recipient from disclosing that fact….
This is one of the issues I discussed in my Crime-Facilitating Speech, 57 Stan. L. Rev. 1095 (2005). Publicizing the existence of this sort of government surveillance can seriously interfere with the investigation, for instance by informing criminals and terrorists that they’re under suspicion and that certain phones, bank accounts, or tactics are no longer safe to use.
But such publicity can also substantially inform public debate about government action and possible government abuse. Concrete and timely examples of alleged abuse — whether or not the alleged abuse rises to the level of illegality or unconstitutionality — may be necessary to persuade the public or opinion leaders to press for changes in government policies: A general complaint that some unspecified abuse is happening somewhere will naturally leave most listeners skeptical. And even if the revelation of the surveillance is only delayed for some months or years, rather than being prohibited forever, such a delay may make it much harder to get timely political action, especially since people tend to be much less interested in alleged abuses years ago than in alleged abuses that are happening right now.
So should the speech be protected because it’s valuable to public debate, despite the potential harm to law enforcement or even national security? Or should law enforcement and national security prevail despite the potential harm to informed public debate on the merits of the surveillance tactics? That’s the tough question that the Crime-Facilitating Speech article tries to deal with, as to this question and as to others, and that the Second Circuit will likely have to deal with as well (though it’s possible that the Second Circuit might deal with it simply by saying that this particular statute is too broad, and without deciding how narrow the statute has to be in order to be constitutional).