A U.S. District Judge decided to strike down for the second time key sections of the Patriot Act that would allow the FBI to obtain electronic communications data from private companies without a court warrant.
The Patriot Act, signed by President Bush in October 2001 and also known as the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act, gave the US law enforcement authorities and agencies expanded powers in the US for fighting against terrorism.
Among its provisions, the act increased the ability of law enforcement agencies to search telephone and e-mail communications and medical, financial, and other records; eased restrictions on foreign intelligence gathering within the United States; expanded the Secretary of the Treasury’s authority to regulate financial transactions, particularly those involving foreign individuals and entities; and enhanced the discretion of law enforcement and immigration authorities in detaining and deporting immigrants suspected of terrorism-related acts.
The American Civil Liberties Union filed a suit in April 2004 against the US Government in the name of an undisclosed Internet company who had received a so-called National Security Letter, in which the FBI requested private information about customers without providing the legal basis for its request- a court warrant. Moreover, the NSL also asked the Internet company not to disclose any information to third parties about FBI’s or NSA’s inquiries. Despite the fact that in the mean the FBI gave up sending NSLs, the aforementioned private company remained under the “gag” order, which prevented the recipients of the letter to even discuss its content with their relatives, friends or in public meetings. They were also forbidden to participate in public debates about the NSLs.
The US District Court held that because the gag provisions cannot be separated from the entire amended statute, the court was compelled to strike down the entire statute.
Marrero wrote, "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.”
"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 were used since October 2001 to obtain a wide range of information, from financial data to library records. In the year before the 11 September 2001 attacks, the FBI issued about 8,500 national security letter requests.
A government report earlier this year said requests had risen from 39,000 in 2003 to about 56,000 in 2004 before falling back to about 47,000 in 2005.
The court found that the gag power was unconstitutional 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.
"As the court recognized, there must be real, meaningful judicial checks on the exercise of executive power," said Melissa Goodman, an ACLU staff attorney on this case. "Without oversight, there is nothing to stop the government from engaging in broad fishing expeditions, or targeting people for the wrong reasons, and then gagging Americans from ever speaking out against potential abuses of this intrusive surveillance power."
Judge Marrero is at his second anti-NSA and anti-FBI decision, after his September 2004 ruling in the Doe vs. Gonzales case (the Internet company vs. the Government), in which he considered the Patriot Act’s NSL provision as unconstitutional. He motivated his decision back then saying that "democracy abhors undue secrecy," and held that FBI’s NSLs come in flagrant contradiction with the First Amendment which protects freedom of speech. The government appealed Judge Marrero's September 2004 ruling, but Congress amended the NSL provision before the court issued a decision.
"The courts play an important role in balancing the requirements of national security against the constitutional protections that safeguard our basic freedoms and liberties," said Arthur Eisenberg, Legal Director of the NYCLU. "We are delighted that the court fulfilled that important function in this case."
The judge also attacked Government’s obstinacy of not disclosing information about the warantless wiretapping program that has outraged the public opinion: “Therefore, to justify summary judgment, an agency affidavit invoking exemption must provide “detailed and specific” information demonstrating both why the material has been kept secret and why such secrecy is allowed by the terms of an existing executive order.”
The U.S. Attorney's office in Manhattan is considering an appeal, a spokeswoman said.
On August 6 this year, President Bush signed The Protect America Act of 2007, which modernizes The Foreign Intelligence Surveillance Act (FISA) from 1978. Under the new act, the government should not have to obtain a court order to conduct surveillance on foreign intelligence targets located in foreign countries.
