In September 2004, Judge Victor Marrero of the United States District Court for the Southern District of New York struck down the NSL provisions of the USA PATRIOT Act. The government appealed the case to the United States Court of Appeals for the Second Circuit.
Justice Ruth Bader Ginsburg, a Justice of the Supreme Court of the United States, acted as a single Circuit Justice for this case. She ruled against vacating the stay imposed by the Court of Appeals of the Second Circuit upon the Federal District Court’s preliminary injunction. Ginsburg said that the Court should hesitate to interfere with an appeals court that was proceeding on an expedited schedule to review a ruling against a federal law, and that, in any event, the Court should be cautious when such a law had been nullified in a lower court. Nearly a year later, the government dropped its demands and allowed the release of the NSL. The ACLU and Library Connection hailed the government’s withdrawal as a victory for all library users who valued their privacy. The case was dismissed as moot.
The New York Civil Liberties Union (NYCLU) and ACLU returned to court in the Southern District of New York on Aug. 15, 2007, arguing that the amended law was unconstitutional because it impermissibly narrowed judicial authority in violation of the separation-of-powers principle and the First Amendment. Judge Marrero agreed and struck down the NSL provision of the amended law. The government appealed the decision in the Second Circuit. On March 19, 2008, the ACLU and the Electronic Frontier Foundation (EFF) filed Amicus briefs at the Second Circuit Court of Appeals arguing that the modifications made in the 2007 USA PATRIOT act are unconstitutional and should be struck down. Oral argument was heard on August 27, 2008, and on December 15, 2008, the Second Circuit issued its opinion affirming that the nondisclosure rules (the "gag order") were unconstitutional.