Judge Strikes Down Patriot Act Provision

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The New York Sun

WASHINGTON – A federal court in New York yesterday struck down a portion of the Patriot Act that requires Internet service providers and telephone companies to secretly turn over customer records to the FBI without judicial review in terrorism investigations.


Declaring that “democracy abhors undue secrecy,” the court also struck down a part of the law that prevented the companies from disclosing to “any person” the fact that they had been asked for the information.


The Bush administration had argued that the law is necessary to protect secret terrorism investigations. Officials at the Department of Justice were reviewing the decision yesterday and had not decided whether to appeal the ruling.


Civil liberties groups called the ruling a victory against “intrusive” governmental powers enacted after the September 11, 2001, attacks. They said the law could be used to obtain the names of customers of Web sites such as Amazon.com or eBay, for example.


Judge Victor Marrero of the U.S. District Court for the Southern District of New York wrote that while the terrorist attacks “loomed” over the case, “It is precisely times like these that demand heightened vigilance, especially by the judiciary.”


The “compulsory, secret, and unreviewable” production of information violates constitutional protection against unreasonable search and seizure, he ruled. And the gag rule is an “unconstitutional prior restraint” on free speech, he concluded.


Yesterday’s ruling opens the door to challenges to a separate provision of the Patriot Act that requires banks and securities firms to provide information to the FBI also under a veil of secrecy, said the legislative director of the New York Civil Liberties Union, Arthur Eisenberg.


“This raises questions more generally about the surveillance and investigative practices that rely on procedures that don’t adequately provide for judicial review, and that call for unlimited gags and nondisclosure requirements,” he said.


The New York group brought the case last May together with the American Civil Liberties Union on behalf of the head of an Internet provider identified only as “John Doe.”


The FBI had served Mr. Doe with a so-called “National Security Letter,” which required him to provide information to an FBI investigation but prevented him from telling anyone he had been asked to do so. Yesterday’s ruling requires that his name be kept secret until the FBI’s investigation is completed.


Although the government made the case that Mr. Doe could sue the government, and Mr. Doe did just that, Judge Marrero concluded the government had to provide people in his position with a formal procedure for bringing an order before a judge.


On its face, the language of the order suggested that recipients could not even contact a lawyer, Judge Marrero found. Government records showed that hundreds of similar letters were issued between October 2001 and January 2003, but no one but Mr. Doe had ever been challenged in court, he noted.


The very existence of the lawsuit had been initially kept secret under the very gag law that it challenged. In heavily redacted documents that were later released, Mr. Doe testified that the gag order made it difficult for him to speak freely with his family and that he was unsure if the law required him to lie to clients who asked him if he were involved in the litigation after it became public.


Judge Marrero warned that a gag order that could never be lifted could allow the government to cover up embarrassing or illicit activities “simply to save face.”


“Under the mantle of secrecy, the self-preservation that ordinarily impels our government to censorship and secrecy may potentially be turned on ourselves as a weapon of self-destruction,” he wrote.


The judge suspended enforcement of his opinion for 90 days to allow the justice department to either appeal the ruling or change its practices.


He noted that a less restrictive version of the law is pending before Congress. The proposed legislation would allow the attorney general to order secrecy only after certifying that disclosure would present a “danger to national security.” The secrecy order could be lifted by the government or the court if the danger expired.


“This is a landmark victory against the Ashcroft justice department’s misguided attempt to intrude into the lives of innocent Americans in the name of national security,” said the executive director of the America Civil Liberties Union, Anthony Romero.


The decision should put a halt to efforts in Congress to pass additional “intrusive” law enforcement powers, he said.


Officials at the Department of Justice declined to comment.


The New York Sun

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