WASHINGTON, D.C. – A legal battle is brewing in the 2nd Circuit U.S. Court of Appeals in New York as representatives of the Bush administration seek to extend the toolkit available to the FBI in its fight against terrorism. At issue is whether or not the federal government should be able to demand that Internet Service Providers hand over previously confidential customer and subscriber information.Last year, U.S. District Judge Victor Marrero of New York prevented a similar approach to surveillance, by denying the government’s insistence that it has the right to conduct covert searches of communication records. According to Marrero, whose ruling came as a result of a lawsuit brought by the American Civil Liberties Union, the same law that gave the government the right to conduct such searches also wrongly denied ISP’s the right to challenge them in court while simultaneously imposing a gag order.

According to the administration, Marrero was in error because the affected company, not just the ACLU, brought the matter to the court’s attention, action clearly prohibited by the law. The government’s filing stated that “the recipient of the national security letter did precisely what the NSLs supposedly prevent recipients from doing.” Further, the government claimed that keeping such letters secret is an appropriate security concern. ACLU attorney Jameel Jaffer points out that “Most people who get NSLs don’t know they can bring a challenge in court because the statute doesn’t say they can.”

The process for bringing a challenge appears to be confusing enough that even the ACLU has been unsure how to proceed, originally filing the suit under seal and spending weeks developing a version deemed appropriate for public consumption. Confusion appears to relate to what Jaffer says is a lack of provisions allowing challenges to FBI demands.

Some material previously censored but released after Marrero’s ruling included text that, on its face, appears benign, including the phrase “national security” and an FBI agent’s statement, “I am a Special Agent of the Federal Bureau of Investigation.”

Meanwhile, Congress has begun debating possible expansion of the PATRIOT Act, including whether or not the FBI should have the power to collect records without judge or grand jury permission. The powers in question were granted as part of a 1986 law and increased in 2001 as part of the PATRIOT Act.