The move comes after the U.S. Court of Appeals for the Ninth Circuit held in September that federal law prohibits law enforcement agencies from maintaining records describing First Amendment activity, unless the record "is pertinent to and within the scope of an ongoing law enforcement activity." The case marked the first time the Ninth Circuit has considered that question.
Garris v. FBI involved the FBI's collection and maintenance of records on the editors of Antiwar.com. The site's editors and co-founders, Garris and Justin Raimondo, challenged the bureau's preservation of records describing their work and sought to have the records expunged under the Privacy Act of 1974. The court of appeals agreed with their arguments related to a detailed post-9/11 "threat assessment" memorandum, noting that the FBI did not demonstrate that the memo at issue was "pertinent" to ongoing law enforcement activity.
Regarding the 2004 FBI memo, the court stated: "It cannot be that maintaining a record of purely protected First Amendment activity is relevant to an authorized law enforcement activity simply on the representation that maintaining the record would 'serve to inform ongoing and future investigative activity.'"