Posted by Bruce Johnson

Last week saw two very important privacy opinions, from opposite sides of the country.

First, on May 23, 2006, the Second Circuit dismissed (without reaching the merits) two appeals involving so-called “National Security Letters” — unilateral notices from the United States Government demanding certain information from internet service providers, librarians, and others and commanding the recipient not to communicate the fact of the NSL to “any person” — in Doe v. Gonzales, because of the effect of recent amendments to the USA Patriot Act. (The changes specified that an NSL may now be reviewed by a court and explicitly allowed those who receive the letters to inform their lawyers about them — and, so, the cases were sent back to the trial courts for further proceedings.)

In his concurring opinion, Judge Richard Cardamone goes much further — and warned the government that the permanent ban on speech it seeks with its NSL procedures was probably unconstitutional. “While everyone recognizes national security concerns are implicated when the government investigates terrorism within our nation’s borders, such concerns should be leavened with common sense so as not forever to trump the rights of the citizenry under the Constitution,” he said. The government’s suggestion that it had the authority to permanently gag its citizens was simply an attempt to “purge from the public record the fact that it had tried and failed to silence the Connecticut plaintiffs.” Notwithstanding the Bush Administration’s “War on Terrorism”, he said, such “a perpetual gag on citizen speech of the type advocated so strenuously by the government may likely be unconstitutional.”

Judge Cardamone added: “The government’s urging that an endless investigation leads logically to an endless ban on speech flies in the face of human knowledge and common sense: witnesses disappear, plans change or are completed, cases are closed, investigations terminate.” He also noted that eternal bans on speech concerning government actions “do not fit comfortably with the fundamental rights guaranteed American citizens” and could serve as a cover for official misconduct.

Second, on May 26, 2006, O’Grady v. Superior Court, the so-called “Apple blogger” case, was decided by the California Court of Appeal. The court ruled that the Stored Communications Act, which states that, subject to certain conditions and exceptions, “a person or entity providing an electronic communication service to the public shall not knowingly divulge to any person or entity the contents of a communication while in electronic storage by that serviceャ†.ャ†.ャ†.ャ†.” 18 U.S.C. ャ゚ 2702(a)(1), prevented Apple Computer, Inc., from enforcing a subpoena seeking access to the sources of a blogsite’s (PowerPage and Apple Insider) disclosure of certain information about a new Apple product, which the company considered confidential. In a broad recognition of the potential impact of this little-used federal privacy law, the court refused to imply an exception for civil discovery subpoenas from the reach of the SCA.

Judge Cardamone’s and the California court’s opinions show that, as technology advances and the risks of government intrusion increases, judges are increasingly sensitive to privacy concerns, even in the face of allegations of theft of trade secrets (at the behest of Apple) and hints (by Government lawyers) that Americans who are forced to produce information to government investigators must be silenced forever so that terrorists will not learn about the successes or failures of the War on Terrorism.

The opinions also recognize the speed of information flow in modern society, and the awkwardness (and in the Doe case, failure, when the Government inadvertently revealed the names of the Connecticut librarian in its court filings) of many efforts to constrict such information, where speech involves matters of public concern. In this regard, Judge Cardamone aptly quoted Benjamin Franklin: “three may keep a secret, if two of them are dead.”