NYTIMES.com
September 7, 2007
Judge Voids F.B.I. Tool Granted by Patriot Act
By ADAM LIPTAK
<http://topics.nytimes.com/top/reference/timestopics/people/l/adam_liptak/index.html?inline=nyt-per>
A federal judge yesterday struck down the parts of the recently revised
USA Patriot Act that authorized the Federal Bureau of Investigation
<http://topics.nytimes.com/top/reference/timestopics/organizations/f/federal_bureau_of_investigation/index.html?inline=nyt-org>
to use informal secret demands called national security letters to
compel companies to provide customer records.
The law allowed the F.B.I. not only to force communications companies,
including telephone and Internet providers, to turn over the records
without court authorization, but also to forbid the companies to tell
the customers or anyone else what they had done. Under the law, enacted
last year, the ability of the courts to review challenges to the ban on
disclosures was quite limited.
The judge, Victor Marrero of the Federal District Court in Manhattan,
ruled that the measure violated the First Amendment and the separation
of powers guarantee.
Judge Marrero said he feared that the law could be the first step in a
series of intrusions into the judiciary's role that would be "the
legislative equivalent of breaking and entering, with an ominous free
pass to the hijacking of constitutional values."
According to a report from the Justice Department's inspector general in
March, the F.B.I. issued about 143,000 requests through national
security letters from 2003 to 2005. The report found that the bureau had
often used the letters improperly and sometimes illegally.
Yesterday's decision was a sequel to rulings by Judge Marrero in 2004
and a federal judge in Connecticut in 2005, both of which enjoined an
earlier version of the law. Congress responded last year by amending the
law in reauthorizing it.
The earlier version of the measure barred all recipients of the letters
from disclosing them. The amended law changed the ban slightly, now
requiring the F.B.I. to certify in each case that disclosure might harm
national security, criminal investigations, diplomacy or people's safety.
The law authorized courts to review those assertions, but under
extremely deferential standards. In some cases, judges were required to
treat F.B.I. statements "as conclusive unless the court finds that the
certification was made in bad faith."
In yesterday's decision, Judge Marrero said that the revisions to the
law did not go far enough in addressing the flaws identified in the
earlier decisions and that in fact they created additional
constitutional problems.
Recipients of the letters, he wrote, remain "effectively barred from
engaging in any discussion regarding their experiences and opinions
related to the government's use" of the letters. Indeed, the very
identity of the Internet service provider that brought this case remains
secret.
The judge said the F.B.I. might be entitled to prohibit disclosures for
a limited time but afterward "must bear the burden of going to court to
suppress the speech." Putting that burden on recipients of the letters,
he said, violates the First Amendment.
The decision found that the secrecy requirement was so intertwined with
the rest of the provision concerning national security letters that the
entire provision was unconstitutional.
Judge Marrero used his strongest language and evocative historical
analogies in criticizing the aspect of the new law that imposed
restrictions on the courts' ability to review the F.B.I.'s determinations.
"When the judiciary lowers its guard on the Constitution, it opens the
door to far-reaching invasions of privacy," Judge Marrero wrote,
pointing to discredited Supreme Court
<http://topics.nytimes.com/top/reference/timestopics/organizations/s/supreme_court/index.html?inline=nyt-org>
decisions endorsing the internment of Japanese-Americans during World
War II and racially segregated railroad cars in the 19th century.
"The only thing left of the judiciary's function for those Americans in
that experience," he wrote, "was a symbolic act: to sing a requiem and
lower the flag on the Bill of Rights."
Lawyers for the American Civil Liberties Union
<http://topics.nytimes.com/top/reference/timestopics/organizations/a/american_civil_liberties_union/index.html?inline=nyt-org>,
which represented the Internet company, said Judge Marrero had confirmed
a bedrock principle.
"A statute that allows the F.B.I. to silence people without meaningful
judicial oversight is unconstitutional," said Jameel Jaffer, an A.C.L.U.
lawyer.
Judge Marrero delayed enforcing his decision pending an appeal by the
government. Rebekah Carmichael, a spokeswoman for the United States
attorney's office in Manhattan, said the government had not decided
whether to file one.
--------------------------------------------------------------------------------
** Join us at the WISPA Reception at 6:30 PM on October the 16th 2007 at ISPCON
**
** ISPCON Fall 2007 - October 16-18 - San Jose, CA www.ispcon.com **
** THE INTERNET INDUSTRY EVENT **
** FREE Exhibits and Events Pass available until August 31 **
** Use Customer Code WSEMF7 when you register online at
http://www.ispcon.com/register.php **
--------------------------------------------------------------------------------
WISPA Wants You! Join today!
http://signup.wispa.org/
--------------------------------------------------------------------------------
WISPA Wireless List: wireless@wispa.org
Subscribe/Unsubscribe:
http://lists.wispa.org/mailman/listinfo/wireless
Archives: http://lists.wispa.org/pipermail/wireless/