Judge Strikes Down Part of Patriot Act
By LARRY NEUMEISTER
Associated Press Writer
U.S. Video
NEW YORK (AP) -- A federal judge struck down a key part of the USA Patriot Act on Thursday in a ruling that defended the need for judicial oversight of laws and bashed Congress for passing a law that makes possible "far-reaching invasions of liberty."
U.S. District Judge Victor Marrero immediately stayed the effect of his ruling, allowing the government time to appeal. Justice Department spokesman Dean Boyd said: "We are reviewing the decision and considering our options at this time."
The ruling handed the American Civil Liberties Union a major victory in its challenge of the post-Sept. 11 law that gave broader investigative powers to law enforcement.
The ACLU had challenged the law on behalf of an Internet service provider, complaining that the law allowed the FBI to demand records without the kind of court supervision required for other government searches. Under the law, investigators can issue so-called national security letters to entities like Internet service providers and phone companies and demand customers' phone and Internet records.
In his ruling, Marrero said much more was at stake than questions about the national security letters.
He said Congress, in the original USA Patriot Act and less so in a 2005 revision, had essentially tried to legislate how the judiciary must review challenges to the law. If done to other bills, they ultimately could all "be styled to make the validation of the law foolproof."
Noting that the courthouse where he resides is several blocks from the fallen World Trade Center, the judge said the Constitution was designed so that the dangers of any given moment could never justify discarding fundamental individual liberties.
He said when "the judiciary lowers its guard on the Constitution, it opens the door to far-reaching invasions of liberty."
Regarding the national security letters, he said, Congress crossed its boundaries so dramatically that to let the law stand might turn an innocent legislative step into "the legislative equivalent of breaking and entering, with an ominous free pass to the hijacking of constitutional values."
He said the ruling does not mean the FBI must obtain the approval of a court prior to ordering records be turned over, but rather must justify to a court the need for secrecy if the orders will last longer than a reasonable and brief period of time.
A March government report showed that the FBI issued about 8,500 national security letter, or NSL, requests in 2000, the year prior to passage of the USA Patriot Act. By 2003, the number of requests had risen to 39,000 and to 56,000 in 2004 before falling to 47,000 in 2005. The overwhelming majority of the requests sought telephone billing records information, telephone or e-mail subscriber information or electronic communication transactional records.
The judge said that through the NSLs, the government can unmask the identity of Internet users engaged in anonymous speech in online discussions, can obtain an itemized list of all e-mails sent and received by someone and can then seek information on those communicating with the individual.
"It may even be able to discover the web sites an individual has visited and queries submitted to search engines," the judge said.
Marrero's lengthy judicial opinion, akin to an eighth-grade civics lesson, described why the framers of the Constitution created three separate but equal branches of government and delegated to the judiciary to say what the law is and to protect the Constitution and the rights it gives citizens.
Marrero said the constitutional barriers against governmental abuse "may eventually collapse, with consequential diminution of the judiciary's function, and hence potential dire effects to individual freedoms."
In that event, he said, the judiciary could become "a mere mouthpiece of the legislature."
Marrero had ruled in 2004, on the initial version of the Patriot Act, that the letters violate the Constitution because they amounted to unreasonable search and seizure. He found free-speech violations in the nondisclosure requirement, which for example, disallowed an Internet service provider from telling customers their records were being turned over to the government.
After he ruled, Congress revised the Patriot Act in 2005, and the 2nd U.S. Circuit Court of Appeals directed that Marrero review the law's constitutionality a second time.
© 2007 The Associated Press. All rights reserved.
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http://www.aclu.org/pdfs/safefree/nsldecision.pdf
Federal Court Strikes Down National Security Letter Provision of Patriot Act (9/6/2007)
FOR IMMEDIATE RELEASE
CONTACT: media@aclu.org
NEW YORK - A federal court today struck down the amended Patriot Act's National Security Letter (NSL) provision. The law has permitted the FBI to issue NSLs demanding private information about people within the United States without court approval, and to gag those who receive NSLs from discussing them. The court found that the gag power was unconstitutional and that because the statute prevented courts from engaging in meaningful judicial review of gags, it violated the First Amendment and the principle of separation of powers.
U.S. District Court Judge Victor Marrero wrote, "In light of the seriousness of the potential intrusion into the individual's personal affairs and the significant possibility of a chilling effect on speech and association - particularly of expression that is critical of the government or its policies - a compelling need exists to ensure that the use of NSLs is subject to the safeguards of public accountability, checks and balances, and separation of powers that our Constitution prescribes.
"As this decision recognizes, courts have a constitutionally mandated role to play when national security policies infringe on First Amendment rights. A statute that allows the FBI to silence people without meaningful judicial oversight is unconstitutional," said Jameel Jaffer, Director of the ACLU's National Security Project.
NSLs may be used to obtain access to subscriber, billing or transactional records from Internet service providers; to obtain a wide array of financial and credit documents; or even to obtain library records. In almost all cases, recipients of NSLs are forbidden, or "gagged," from disclosing that they have received the letters, even to close family and friends. This has been a severe hardship on NSL recipients, who not only have been forced to keep this major event secret, but who have been prevented from meaningfully participating in public discussions about NSLs. The court today held that because the gag provisions cannot be separated from the entire amended statute, the court was compelled to strike down the entire statute.
"As the court recognized, there must be real, meaningful judicial checks on the exercise of executive power," said Melissa Goodman, an ACLU staff attorney on this case. "Without oversight, there is nothing to stop the government from engaging in broad fishing expeditions, or targeting people for the wrong reasons, and then gagging Americans from ever speaking out against potential abuses of this intrusive surveillance power."
The case, Doe v. Gonzales, was originally filed in April 2004 on behalf of an anonymous Internet access company that had received an NSL. Although the FBI has since dropped its NSL demand, the John Doe has remained under a gag order. In September 2004, Judge Marrero initially struck down the Patriot Act NSL provision as unconstitutional, writing that "democracy abhors undue secrecy." The landmark ruling held that permanent gag orders imposed under the NSL law violated free speech rights protected by the First Amendment.
The government appealed Judge Marrero's first ruling, but Congress amended the NSL provision before the court issued a decision. In May 2006 the appeals court asked the district court to consider the constitutionality of the amended law. In a concurring opinion, Judge Richard Cardamone strongly criticized the government for continuing to argue that a permanent ban on speech would be permissible under the First Amendment.
In his latest decision, Judge Marrero cited the slavery and internment cases Plessy v. Ferguson and Korematsu v. United States: "These examples, however few in number, loom large in proportions of the tragic ill-effects felt in the wake of the courts' yielding fundamental ground to other branches of government on the constitutional role the judiciary must play in protecting the fundamental freedoms of the American people. Viewed from the standpoint of the many citizens who lost essential human rights as a result of such expansive exercises of governmental power unchecked by judicial rulings appropriate to the occasion, the only thing left of the judiciary's function for those Americans in that experience was a symbolic act: to sing a requiem and lower the flag on the Bill of Rights."
In its case, the ACLU and the NYCLU said that the gag provision has had significant effects on the John Doe plaintiff. John Doe was prevented from participating in the contentious Patriot Act reauthorization debate that raged across the nation in late 2005 and early 2006. Even though Doe had firsthand knowledge of this sweeping FBI power, he could not speak about the fact that he had received an NSL, divulge the breadth of the letter, or discuss the ramifications on his business relationships.
"The courts play an important role in balancing the requirements of national security against the constitutional protections that safeguard our basic freedoms and liberties," said Arthur Eisenberg, Legal Director of the NYCLU. "We are delighted that the court fulfilled that important function in this case."
While reports previously indicated a hundred-fold increase to 30,000 NSLs issued annually, an extraordinary March 2007 report from the Justice Department's own Inspector General puts the actual number at over 143,000 NSLs issued between 2003 and 2005. The same investigation also found serious FBI abuses of the NSL power and numerous potential violations of the law.
In a related case, the ACLU represented four librarians who are on the board of Library Connection, a library consortium in Connecticut. The consortium was served with an NSL and challenged both the letter and the accompanying gag. After many months of litigation in which a district court found the gag on Library Connection was unconstitutional, the government withdrew its demand for information and abandoned the gag order.
In addition, in June, the ACLU filed a lawsuit to enforce its Freedom of Information Act request to force the Department of Defense and the CIA to turn over documents concerning those agencies' use of NSLs. That lawsuit is pending.
The ACLU is also working on the legislative front to fight the authorization of NSLs. In response to the March report from the Justice Department's Office of the Inspector General finding serious NSL abuses and making clear that the FBI cannot police itself, Representatives Jerrold Nadler (D-NY) and Jeff Flake (R-AZ) introduced a bill to fix the problems with the NSL power. The ACLU continues to urge Congress to enact this vital legislation.
A copy of today's court order can be found on line at:
www.aclu.org/safefree/nationalsecurityletters/31565lgl20070906.html
More information on Doe v. Gonzales and NSLs is online at: www.aclu.org/nsl
Attorneys in the case are Jaffer, Goodman and Alexa Kolbi-Molinas of the ACLU, and Arthur Eisenberg of the NYCLU.
Judge strikes down part of Patriot Act
FBI and the U.S. Department of Justice must stop issuing letters that require ISPs to turn over subscriber records, judge rules
By Grant Gross, IDG News Service
September 06, 2007
A U.S. district judge has struck down a part of the anti-terrorism-inspired Patriot Act that requires telephone and Internet service providers to turn over records to the government without telling customers.
Free IT resource
Judge Victor Marrero, of the U.S. District Court for the Southern District of New York, ruled Thursday that the Patriot Act provision that allows the U.S. Federal Bureau of Investigation to obtain ISP and telecom subscribers' billing, calling, and Web surfing records without court approval violates the U.S. Constitution.
http://www.infoworld.com/article/07/09/06/Judge-strikes-down-part-of-Patriot-Act_1.html
Judge strikes down part of Patriot Act
By Richard B. Schmitt
He rules that investigators ordering Internet and phone companies to turn over
customer records must eventually get court approval.
http://email.latimes.com/cgi-bin1/DM/y/eBXTW0IAIo30G2B0Iuoq0EA
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