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Judge Rules Feds Cannot Silence ISPs With Patriot Act

By Keith Regan E-Commerce Times ECT News Network
Sep 6, 2007 2:29 PM PT

A federal judge on Thursday struck down a component of the USA Patriot Act, saying the post-9/11 law violates constitutional principles by attempting to force third parties such as Internet service providers (ISPs) who receive demands for information without search warrants to keep silent about those inquiries.

Judge Rules Feds Cannot Silence ISPs With Patriot Act

U.S. District Court Judge Victor Marrero handed a victory to Patriot Act opponents, including the American Civil Liberties Union (ACLU), with the ruling.

The existing law, which has been revised and amended several times since taking effect late in 2001, "offends the fundamental constitutional principles of checks and balances and separation of powers," Marrero said.

National Security Letters

The USA Patriot Act -- which officially is the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 -- was seen as providing broad discretion to the executive branch of the federal government to give it the tools needed to seek out and stop terrorists before they strike. The legislation made it easier to force phone and Internet companies to turn over customer records and communications logs and to eavesdrop on phone calls and e-mail messages.

The ruling focused on the National Security Letter (NSL) provisions of the amended Patriot Act. The FBI and other agencies use NSLs to gather information about U.S. residents without a search warrant. The NSLs include gag orders prohibiting those who receive the letters from discussing them.

The court found that the gag power was unconstitutional, according to the ACLU, 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.

The case, known as "Doe v. Gonzales" -- as in Alberto Gonzales, the attorney general who recently resigned -- began in 2004. The ACLU filed the case on behalf of an anonymous ISP that had received an NSL seeking information about customers. The FBI later dropped the demand for information contained in the letter, the ACLU said, but the group decided to press the case.

Marrero had already ruled against NSLs in the case once on similar grounds. That decision was appealed, but before the appeal could be heard, Congress amended the NSL provisions in the Patriot Act. In 2006, the appeals court asked the lower court to consider the constitutional implications of the amended legislation.

'A Compelling Need'

"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," Marrero wrote.

"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 are often used to obtain access to subscriber, billing or transactional records from ISPs as well as other uses, such as gathering records of library patrons or financial information, the ACLU said.

Clouded by Secrecy

The ACLU had argued that the ISP at the heart of the case was locked out of the public debate on the Patriot Act in the months leading to the laws reauthorization. The ACLU has also maintained the Patriot Act went too far in several areas by removing any oversight of investigative activities or even creating basic guidelines for when such a letter can be issued, said Caroline Fredrickson, director of legislative activities for the organization.

"Without oversight or standards, the letters can easily be overused and abused and for a time, there was not even any insight into how frequently they were being issued because there was secrecy on all sides," she told the E-Commerce Times. Legislation has already been filed to curb the NSL authority given the FBI and the case may help draw attention to those efforts to clarify the law.

The Electronic Frontier Foundation (EFF) has also spoken out against the use of NSLs and has documented repeated instances in which letters contained errors, the result of which was that investigators were being given records of people not suspected of any wrongdoing.

The shroud of secrecy surrounding the letters has led to cases where ISPs and others who received letters actually turned over more than was being sought, said Marcia Hofmann, a staff attorney with the EFF who has worked on NSL cases.

While it's not clear how the gag order requirements in the letters would have or could have been enforced, they obviously had a chilling effect on those who received them and kept the outcry about the letters muted, Hofmann added. "IF the FBI tells you to be quiet about something, it's not something people take lightly," she said.

The Inspector General assigned to the Justice Department said in a report earlier this year that some 143,000 National Security Letters were issued between 2003 and 2005, a number that far exceeded the estimates of privacy and civil rights advocacy groups.


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