in response to a Freedom of Information Act lawsuit, the FBI had used NSLs to obtain information about individuals who were the subject of an FBI terrorism or counterintelligence investigation and information from telecommunications companies about individuals with whom the subject of the investigation had communicated. According to a September 9, 2007, New York Times report, In many cases, the target of a[n FBI] national security letter whose records are being sought is not necessarily the actual subject of a terrorism investigation. Under the USA PATRIOT Act, the FBI must assert only [SIC] that the records gathered through the letter are considered relevant to a terrorism [or counterintelligence] investigation. In April 2008, the American Civil Liberties Union alleged that the military was using the FBI to skirt legal restrictions on domestic surveillance to obtain private records of Americans' Internet service providers, financial institutions, and telephone companies. The ACLU based its allegation on a review of more than 1,000 documents provided by the Defense Department. The Department of Justice Office of Inspector General later determined it was the Department of Defense (not the FBI) that had lawfully obtained the information under the National Security Act of 1947, not by an NSL. Doe v. Ashcroft The lack of judicial oversight and the Supreme Court ruling in Smith v. Maryland was the core of Doe v. Ashcroft, a test case brought by the ACLU concerning the use of NSLs. The lawsuit was filed on behalf of "John Doe" plaintiff Nicholas Merrill, founder of Calyx Internet Access, who had received an NSL. The action challenged the constitutionality of NSLs, specifically the nondisclosure provision. At the district court, Judge of the Southern District of New York held in September 2004 that NSLs violated the Fourth Amendment ("it has the effect of authorizing coercive searches effectively immune from any judicial process") and First Amendment. However, Judge Marrero stayed his ruling while the case proceeded to the court of appeals. Because of the New York district court ruling, while the case was still on appeal, Congress amended the USA PATRIOT Act to provide for more judicial review of NSLs and clarified the NSL nondisclosure provision. Based on the U.S. Supreme Court rulings, the FBI does not need judicial approval to issue an NSL. The government appealed Judge Marrero's decision to the Second Circuit Court of Appeals, which heard arguments in May 2006. In March 2008, the Second