A federal judge has found unconstitutional a portion of the controversial Patriot Act that allows the FBI to demand information in secret from Internet service providers.
"Today's ruling is an important victory for the Bill of Rights, and a critical step toward reigning in the unconstitutional reach of the Patriot Act," Electronic Frontier Foundation staff attorney Kurt Opsahl said after the decision. "The court recognized that judicial oversight and the freedom to discuss our government's activities both online and offline are fundamental safeguards to civil liberties, and should not be thrown aside."
U.S. District Judge Victor Marrero sided with the American Civil Liberties Union, which sued in April on behalf of an unnamed ISP saying that part of the Patriot Act was an undue restriction on free speech and privacy rights. Under that law, those receiving a national security letter are barred forever against disclosing its existence to anyone, a bar the ACLU argued could not hold Constitutional muster.
Marrero agreed. "All but the most mettlesome and undaunted NSL recipients would consider themselves effectively barred from consulting an attorney or anyone else who might advise them otherwise," he wrote in his ruling, "as well as bound to absolute silence about the existence of the NSL.… For the reasonable NSL recipient confronted with the NSL's mandatory language and the FBI's conduct related to the NSL, resistance is not a viable option."
"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," ACLU executive director Anthony D. Romero said in a statement following the Marrero ruling. "Even now, some in Congress are trying to pass additional intrusive law enforcement powers. This decision should put a halt to those efforts."
The law allowed the FBI to demand from ISPs information including any local or long-distance telephone calls a person had made.
National security letters before the Patriot Act could be used in probes of suspected terrorists or spies but with court approval. But the Patriot Act let the FBI say only that a letter might be "relevant" to a terrorist-related investigation and could be submitted without court approval.
Marrero said his order blocking the FBI from using national security letters – a type of administrative subpoena – would not take effect for 90 days, so the government would have time to appeal.
But ACLU associate legal director Ann Beeson said it was "an enormous relief" to be able to speak out about "just how dangerous and extreme this Patriot Act power is…the Patriot Act imposed a 'categorical, perpetual, and automatic gag on every person who received a national security letter, as well as their lawyers."
