Just this winter, Supreme Court pick Sonia Sotomayor was part of a unanimous court decision that limited the use of the 2001 Patriot Act to silence Internet service providers who are contacted by federal authorities for customer phone and Internet records.
The U.S. Court of Appeals for the Second Circuit, where Sotomayor serves as a judge, sided, in part, with the American Civil Liberties Union in a lawsuit against then-U.S. Attorney General Michael B. Mukasey. The plaintiffs argued that the FBI's authorities under the act should not be used to forbid providers from speaking out about requests for private subscriber records. The act was passed after the events of Sept. 11 to strengthen law enforcement's powers.
The court found that such so-called "gag orders" are unconstitutional on the grounds that they violate the First Amendment right to free speech.
The court decided nondisclosure demands are permissible if an FBI official can certify that disclosure might result in "enumerated harm" to an anti-terrorism or clandestine intelligence investigation.