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Judge deals blow to Patriot Act

He blocks FBI from using national security letters, a controversial surveillance tool that has been misused in the past.

A key portion of the Patriot Act is unconstitutional and violates Americans' free speech rights, a federal judge said Thursday in a case that could represent a bitter setback for the Bush administration's attempts to expand its surveillance powers.

U.S. District Judge Victor Marrero said the section of the Patriot Act that permits the FBI to send Internet service providers secret demands, called national security letters, for customer information violates the First Amendment and unreasonably curbs the authority of the judiciary.

FBI agents can use NSLs to surreptitiously obtain logs of American citizens' e-mail correspondence, a list of Web sites visited and queries submitted to search engines, without obtaining a judge's approval in advance. NSLs can also be used to obtain bank and telephone records. They are supposed to be used only when an investigation is allegedly relevant to a terrorist investigation.

FBI's surveillance push

The Patriot Act expanded the FBI's use of national security letters, which are secret and powerful demands for business records. The FBI can use them to obtain an itemized list of all the e-mails sent and received by the target of the NSL, and it can seek information on individuals communicating with that person. It can even discover the Web sites an American citizen has visited and queries submitted to search engines. The use of NSLs increased dramatically after September 11, 2001, as you can see by these partial figures made available by the Justice Department's inspector general (click for PDF). Each row represents the total NSL requests made during that calendar year.

2000: About 8,500

2003: 39,346

2004: 56,507

2005: 47,221

In a 106-page decision (click for PDF), Marrero said the gag orders that can accompany NSLs are not "sufficiently narrowly tailored" to survive First Amendment review. In addition, he said, the law's attempt to limit judicial review "offends the fundamental constitutional principles of checks and balances and separation of powers" and "reflects an attempt by Congress and the executive to infringe upon the judiciary's designated role under the Constitution."

Marrero barred Attorney General Alberto Gonzales and FBI Director Robert Mueller from issuing NSLs, but delayed the effective date of the prohibition for 90 days to give the Bush administration a chance to appeal.

Although the U.S. Department of Justice is expected to appeal the ruling to the U.S. Court of Appeals for the 2nd Circuit, it declined to confirm its plans on Thursday. A spokesman said only that "we're reviewing the decision and considering our options at this time."

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

A report published in March by the Justice Department's inspector general found "serious misuse" of NSLs on the part of the FBI. But because unlawful use of NSLs is not a crime--unlike conducting an unlawful wiretap, which is a federal felony--no prosecutions were brought. Also in March, The Washington Post published a first-person account by the president of an Internet company who received an NSL. "I resent being conscripted as a secret informer for the government" for the past three years, the writer said.

In an odd twist, this is the second time that Marrero, a judge in the Southern District of New York, has struck down NSLs as unconstitutional.

The first ruling came in September 2004, when he ruled that the NSL portions of the original version of the Patriot Act enacted three years earlier were unconstitutional.

After the Justice Department appealed, the 2nd Circuit Court of Appeals temporarily blocked Marrero's order from taking effect during the course of the appeal. But before the appeal was complete, Congress rewrote portions of the Patriot Act including the NSL section, which led the appeals court to send the case back to Marrero to evaluate whether the revisions passed constitutional muster.

Such letters are not new. Before the Patriot Act was enacted a few weeks after the September 11, 2001, terrorist attacks, they could be used in investigations of suspected terrorists and spies. But after the change to the law, the FBI needed only to say that a letter may be "relevant" to a terrorist-related investigation. No court approval is required.

NSLs to telecommunications firms originated with a 1986 law called the Electronic Communications Privacy Act, which permitted them only in relation to an investigation of "an agent of a foreign power." That once-strict requirement was broadened in 1993 and again by the Patriot Act eight years later.

The most recent changes to NSLs came in mid-2006 with the revisions to the Patriot Act. It said that senior FBI officials could forever prohibit the recipient from disclosing the existence of the NSL "to any person" other than their lawyer with five years in prison as a punishment.