by TChris

If the Bush administration had its way, we wouldn't know anything about the ACLU's lawsuit challenging a provision of the Patriot Act that requires telephone companies and ISP's to hand over a customer's records to the FBI without notice to the customer. Because the law prohibits the communications company from revealing the existence of the FBI's demand, the ACLU filed its suit "under seal," keeping it out of the public record of court filings. The ACLU then asked the court to unseal the lawsuit. Predictably, the government doesn't think it's use (or abuse) of the Patriot Act is anybody's business; it asked the court to keep everything about the case a secret.

Judge Victor Marrero is looking for a middle ground. He's likely to release those documents (in whole or in part) that would not jeopardize national security. Of course, the government will argue that releasing anything but the ACLU's address will jeopardize national security, but it's likely that enough information will be released to provide a better sense of the facts upon which the suit is based.

The ACLU is joined in the suit by an unidentified recipient of a demand for records -- presumably a communications company.

The A.C.L.U. argues that the F.B.I. letters are unconstitutional because they violate the due process rights of the businesses and people who receive them, and because the order prohibiting discussion of the investigation violates free expression rights. The group contends that the government should be required to seek approval from a judge before issuing a letter and recipients should have a way to question the order.

When the ACLU posted a general description of the lawsuit on its website and included some scheduling information, the government told the ACLU to remove the scheduling information -- in the apparent belief that the public has no right to know whether or when the court will act in the lawsuit. After Judge Marrero allowed the release of some documents, the ACLU restored a statement that the suit will probably be heard at the end of the summer.

Just in time for the election. No wonder the Justice Department wants to keep it quiet.