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Part of Patriot Act struck down

By The Associated Press
09.06.07

NEW YORK — A federal judge struck down parts of the revised USA Patriot Act as unconstitutional today, saying courts must be allowed to supervise cases where the government orders Internet providers to turn over records without telling customers.

U.S. District Judge Victor Marrero, ruling in Doe v. Gonzales, said the government orders must be subject to meaningful judicial review and that the recently rewritten Patriot Act “offends the fundamental constitutional principles of checks and balances and separation of powers.”

The law had been challenged by the American Civil Liberties Union, which complained that the revised law allowed the FBI to demand records without the kind of court order required for other government searches.

The ACLU said it was improper to issue so-called national security letters, or NSLs — investigative tools used by the FBI to compel businesses to turn over customer information — without a judge’s order or grand jury subpoena. Examples of such businesses include Internet service providers, telephone companies and public libraries.

Yusill Scribner, a spokeswoman for the U.S. attorney’s office, said the government had no immediate comment on the ruling.

Jameel Jaffer, who argued the case for the ACLU, said, “We’re very pleased with the decision.”

He said the revised law had wrongly given the FBI sweeping authority to control speech because the agency was allowed to decide on its own — without court review — whether a company receiving an NSL had to remain silent or whether it could reveal to its customers that it was turning over records.

In 2004, ruling on the initial version of the Patriot Act, the judge said the letters violate the Constitution because they amounted to unreasonable search and seizure. He found that the nondisclosure requirement — under which an Internet service provider, for instance, would not be allowed to tell customers that it was turning over their records to the government — violated free speech.

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.

Marrero originally ruled in a case pertaining to an unidentified Internet service provider that received one of the letters, in which the FBI claimed that phone or Internet records were “relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities.”

The ACLU complained that Congress’ revision of the NSL law didn’t go far enough to protect people because the government could still order companies to turn over their records and remain silent about it, if the FBI determined that the case involved national security.

The judge said the way the law was written “reflects an attempt by Congress and the executive to infringe upon the judiciary’s designated role under the Constitution.”

He added: “It is axiomatic that in our system of government it is the province of the courts to say what the law is. When Congress attempts to curtail or supersede this role, it jeopardizes the delicate balance of powers among the three branches of government and endangers the very foundations of our constitutional system.”


Update
Lawmakers float changes to Patriot Act in wake of ruling
Federal judge's blistering attack on law sparks behind-the-scenes talks in Washington among members of Congress who wrote and revised act. 09.07.07

Previous
ACLU lawyer: Patriot Act gag order is unconstitutional
Attorney tells federal judge statute disregards First Amendment by permitting law enforcement authorities to ban those who receive national security letters from talking about them. 08.16.07

Related

Federal court strikes down part of Patriot Act

Judge says provision allowing secret searches of records from ISPs, other businesses violates First Amendment because it bars companies from ever disclosing search took place. 09.30.04

Patriot Act awaits Bush's signature
House passes renewal measure by 280-138 vote, ending monthslong battle over how to balance privacy rights against security concerns. 03.08.06

2nd Circuit challenges national security letters' speech ban
Panel dismisses Connecticut case as moot, returns New York case to lower court to see how new law affects it. 05.24.06

Justice orders release of records in national security letter case
Ruth Bader Ginsburg directs lower courts to unseal material in case involving FBI's demand for computer records from Connecticut library. 08.03.06

Librarian who fended off FBI warns against government secrecy
'Terrorists win when the fear of them induces us to destroy the rights that make us free,' George Christian tells Senate panel. 04.12.07

FBI withdraws national security letter issued to digital library
Internet Archive had challenged agency demand, alleging that letter violated free speech by prohibiting recipients from discussing it. 05.08.08

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