NSLs can be used to obtain access to subscriber, billing, or transactional records from Internet service providers, and to obtain a wide array of financial and credit documents. NSLs could even be used to obtain library records. In almost all cases, recipients of NSLs are forbidden from disclosing that they have received the letters, even to close family and friends.

The court found that the gag power was unconstitutional. The court also found that it violated the First Amendment and the principle of separation of powers because the statute prevented courts from engaging in meaningful judicial review of the gags.

"In light of the seriousness of the potential intrusion into the individual's personal affairs and the significant possibility of a chilling effect on speech and association -- particularly of expression that is critical of the government or its policies -- a compelling need exists to ensure that the use of NSLs is subject to the safeguards of public accountability, checks and balances, and separation of powers that our Constitution prescribes," U.S. District Court Judge Victor Marrero wrote in his decision.

Remember the Bill of Rights

The case, Doe v. Gonzales, was originally filed in April 2004 on behalf of an anonymous Internet access company that had received an NSL. Although the FBI has since dropped its NSL demand, the John Doe has remained under a gag order. In September 2004, Judge Marrero initially struck down the Patriot Act NSL provision as unconstitutional, writing that "democracy abhors undue secrecy."

The landmark ruling held that permanent gag orders imposed under the NSL law violated free speech rights protected by the First Amendment.

"As this decision recognizes, courts have a constitutionally mandated role to play when national security policies infringe on First Amendment rights," Jameel Jaffer, Director of the ACLU's National Security Project, said in a statement. "A statute that allows the FBI to silence people without meaningful judicial oversight is unconstitutional."

In his most recent decision, Judge Marrero cited the segregation and internment cases Plessy v. Ferguson and Korematsu v. United States. "Viewed from the standpoint of the many citizens who lost essential human rights as a result of such expansive exercises of governmental power unchecked by judicial rulings appropriate to the occasion, the only thing left of the judiciary's function for those Americans in that experience was a symbolic act: to sing a requiem and lower the flag on the Bill of Rights," the Judge wrote.

Check and Balances

Marc Rotenberg, executive director of the Electronic Privacy Information Center in Washington, D.C., applauded Judge Marrero's opinion on two fronts: as a matter of privacy rights and as a reflection of the U.S. constitutional system of checks and balances that govern the conduct of searches.

"It shouldn't be left to the executive branch of government to decide on its own if a search is reasonable and meets Fourth Amendment standards. That's a decision that has to be made, we believe, by a federal judge," Rotenberg said.

"It's important to understand that legal procedures such as civil litigation involving subpoenas or search warrants in criminal investigations typically require the intervention of a judge," he added. "This decision will be favorable precedent that others will cite in the future if similar cases arise."