Judge Strikes Down Part of Patriot Act

A U.S. district judge struck down the section of the act that requires telephone and ISPs to turn over records to the government without telling customers.

Grant Gross, IDG News Service
September 06, 2007

A U.S. district judge has struck down a part of the antiterrorism-inspired Patriot Act that requires telephone and Internet service providers to turn over records to the government without telling customers.

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.

Marrero ordered the FBI and the U.S. Department of Justice to stop issuing so-called national security letters, or NSLs, requiring ISPs to turn over subscriber records. The NSL program prohibited ISPs from telling customers that they were being investigated.

Marrero delayed the order pending a DOJ appeal of his decision.

The NSL program under the Patriot Act violates the First Amendment to the U.S. Constitution as a restraint on free speech, the judge said in his 107-page order. The program also bypasses judicial oversight of the requests, Marrero said.

The NSL program could allow the FBI to unmask the identity of Internet users posting anonymous comments, obtain all of the e-mail messages of an Internet user, and even find out all the Web sites a user has visited, Marrero said.

"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," the judge wrote.

The DOJ is reviewing the decision and considering its options, a spokesman said.

The American Civil Liberties Union, which brought the lawsuit against the DOJ and FBI, praised Marrero's decision. "Courts have a constitutionally mandated role to play when national security policies infringe on First Amendment rights," Jameel Jaffer, director of the ACLU's National Security Project, said in a statement. "A statute that allows the FBI to silence people without meaningful judicial oversight is unconstitutional."

The U.S. Congress passed the Patriot Act less than two months after the terrorist attacks of Sept. 11, 2001. Congress, under pressure from President George Bush, reauthorized the Patriot Act in 2006. Many civil liberties groups have criticized the law for being overly broad and targeting innocent U.S. residents.

Marrero in 2004 ruled that the NSL provisions of the Patriot Act violated the Constitution because they amounted to unreasonable search and seizure. After the 2006 revisions to the Patriot Act, the U.S. Court of Appeals for the Second Circuit sent the case back to Marrero for a ruling on whether the NSL provisions were still unconstitutional.

The FBI's use of the NSL program, which existed before the Patriot Act, has ballooned since the law was passed, Marrero noted. In 2000, the FBI issued about 8,500 NSL requests, and the number of requests rose to 56,000 in 2004, he wrote.

The NSL program's "most troubling" aspect, Marrero wrote, is that it attempts to bypass judicial review of law enforcement requests. The program "reflects an attempt by Congress and the executive to infringe upon the judiciary's designated role under the Constitution," he wrote.

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