A federal appeals panel has suggested it might require the government to permit libraries, major corporations and other groups to challenge FBI demands for records under the Patriot Act.
Members of the three-judge panel of the 2nd U.S. Circuit Court of Appeals were questioning lawyers in two cases about the government's secrecy requirements.
Judges Barrington D. Parker Jr. and Richard Cardamone both indicated they were troubled by the secrecy requirements, suggesting the court might spell out legal avenues for those subjected to the probes. However, they reserved judgment Wednesday.
There is "very good reason not to allow public disclosure while a counterintelligence investigation is going on," argued Douglas N. Letter, a Justice Department attorney.
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 court was hearing appeals by the government of rulings in separate cases in New York and Connecticut.
In Connecticut, a federal judge 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 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 violate the Constitution because they amount 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 did so.
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.
