Judge Strikes Down Part of Patriot Act

September 6, 2007 by The Associated Press

A federal judge struck down parts of the revised USA Patriot
Act on Thursday, saying investigators must have a court’s
approval before they can order Internet providers to turn over
records without telling customers.

U.S. District Judge Victor Marrero said the government orders
must be subject to meaningful judicial review and that the
recently rewritten Patriot Act "offends the fundamental
constitutional principles of checks and balances and
separation of powers.

The American Civil Liberties Union had challenged the law,
complaining that it allowed the FBI to demand records without
the kind of court order required for other government
searches.

The ACLU said it was improper to issue so-called national
security letters, or NSLs - investigative tools used by the
FBI to compel businesses to turn over customer information -
without a judge’s order or grand jury subpoena. Examples of
such businesses include Internet service providers, telephone
companies and public libraries.

Yusill Scribner, a spokeswoman for the U.S. attorney’s office,
said prosecutors had no immediate comment.

Jameel Jaffer, who argued the case for the ACLU, said the
revised law had wrongly given the FBI sweeping authority to
control speech because the agency was allowed to decide on its
own - without court review - whether a company receiving an
NSL had to remain silent or whether it could reveal to its
customers that it was turning over records.

In 2004, ruling on the initial version of the Patriot Act, the
judge said the letters violate the Constitution because they
amounted to unreasonable search and seizure. He found that the
nondisclosure requirement - under which an Internet service
provider, for instance, would not be allowed to tell customers
that it was turning over their records to the government -
violated free speech.

After he ruled, Congress revised the Patriot Act in 2005, and
the 2nd U.S. Circuit Court of Appeals directed that Marrero
review the law’s constitutionality a second time.

The ACLU complained that Congress’ revision of the law didn’t
go far enough to protect people because the government could
still order companies to turn over their records and remain
silent about it, if the FBI determined that the case involved
national security.

The law was written "reflects an attempt by Congress and the
executive to infringe upon the judiciary’s designated role
under the Constitution," Marrero wrote.