On the recommendation of the Second Circuit, the district court considered the amended law in 2007, in Doe v. Gonzales. On September 6, 2007, Judge Marrero struck down the NSL provision of the revised Act, ruling that even with limited judicial review granted in the amended law, it was still a violation of separation of powers under the United States Constitution and the First Amendment. This is not yet enforced, pending a possible government appeal.
Because of the secrecy rules involved, the government would not let the ACLU disclose they had even filed a case for nearly a month, after which they were permitted to release a heavily redacted version of the complaint (shown right). According to government secrecy rules (the National Security Letter provision, [Section 2709] of the 1986 Electronic Communications Privacy Act, [ECPA]) the ACLU still could not disclose which ISP was served with the request to produce documents.
This prompted the ACLU to challenge the secrecy law itself, and they sued to invalidate the NSL provision of the ECPA. Introduced by U.S. Senator Patrick Leahy of Vermont and enacted in 1986, the bill permitted the FBI to obtain customer records from telephone and Internet companies in terrorism investigations.
The government agreed in principle with the ACLU's claim that the recipient of the subpoena can challenge it in court, and because the matter of specified judicial process remained in question and directly affected other present and future cases, the Court found the NSL section to be in need of review.
The finding of unconstitutionality essentially dismisses any claimed presumptive legal need for absolute secrecy in regard to terrorism cases. The USA PATRIOT Act is affected only if the limits on NSLs in terrorism cases also apply to non-terrorism cases such as those authorized by the Act. The government was expected to appeal the ruling to the Supreme Court, and until the district court ruling is reviewed, the secrecy procedures of the NSL remain in place.