NEW YORK A federal appeals panel yesterday suggested it might require the government to permit entities ranging from major corporations to libraries to challenge FBI demands for records under the Patriot Act.
Judges on a three-judge panel of the 2nd U.S. Circuit Court of Appeals commented as they questioned lawyers on both sides in two cases from Connecticut and New York in which lower court judges ruled that the government's secrecy requirements went too far.
Judges Barrington D. Parker Jr. and Richard Cardamone both indicated they were troubled by the seemingly endless secrecy requirements and that the court might spell out what legal avenues those subjected to the probes can follow. However, they reserved judgment yesterday.
There is "very good reason not to allow public disclosure while a counterintelligence investigation is going on," Douglas N. Letter, a Justice Department attorney, argued before the 2nd Circuit.
There are no criminal or civil penalties in place for violating the gag-order requirements, though the government could obtain a court order to enforce them, he said.
The American Civil Liberties Union argued the government was oppressive in its approach.
The 2nd Circuit was hearing appeals by the government of rulings in separate cases from New York and Connecticut.
In Connecticut, a federal judge had ruled that librarians were unfairly prevented from joining a debate over how the Patriot Act should be rewritten because of a gag order issued in an FBI records request about library patrons.
Prosecutors said the gag order only prevented the release of the client's identity, not the client's ability to speak about the Patriot Act.
In the New York case, a federal judge had ruled that national security letters violated the Constitution because they amounted to unreasonable search and seizure.
The FBI can issue national security letters without a judge's approval in terrorism and espionage cases. They require telephone companies, Internet service providers, banks, credit bureaus and other businesses to produce highly personal records about their customers or subscribers.
People who receive the letters are prohibited by law from disclosing to anyone that they got them.
The judge also ruled the nondisclosure requirement violated free speech.
The Patriot Act, passed shortly after the Sept. 11, 2001, attacks, allowed expanded surveillance of terror suspects, increased use of material-witness warrants to hold suspects incommunicado and permitted secret proceedings in immigration cases.