Federal Judge Rules Unconstitutional Parts of Patriot Act
Mark Hamblett
New York Law Journal
September 7, 2007

Congress' attempt to fix the problems with a key aspect of the USA PATRIOT Act
has failed to satisfy a Manhattan federal judge.

Southern District of New York Judge Victor Marrero Thursday ruled
unconstitutional a provision authorizing the FBI to issue a form of
administrative subpoena called a National Security Letter (NSL), finding that
an amended gag order on recipients of the letters still violated the First
Amendment.

The judge also found that provisions allowing for judicial review for those
who refuse to comply with the letters or challenge the secrecy provision was
inadequate and violated the separation of powers.

Finally, Marrero concluded that the offending portions of the statute,
including the gag rule, could not be severed from the whole.

It was the second time that Marrero had rejected the gag order on Internet
service providers and others who receive the letters from the FBI under 18
U.S.C. §2709.

And it was another blow to FBI officials who consider the letters
"indispensable investigative tools" for counterterrorism and
counterintelligence investigations.

Marrero's 103-page opinion in Doe v. Gonzales, 04 Civ. 2614, comes three years
after he first found the statute unconstitutional on First and Fourth
Amendment grounds in Doe v. Ashcroft, 334 F. Supp. 2d 471. He stayed his
ruling until the case could be reviewed by the 2nd U.S. Circuit Court of
Appeals, meaning that the FBI could continue to issue the letters.

The 2nd Circuit held off ruling on Marrero's opinion because Congress had
amended the law. It remanded the case to Marrero, who held a hearing on Aug.
15.

National security letters allow FBI agents in counterterrorism and
counterintelligence investigations to secretly gather phone, bank and Internet
records without a court order or a grand jury subpoena.

Thursday, Marrero found that "several aspects of the revised nondisclosure
provision of the NSL statute (18 U.S.C. §2709) violate the First Amendment and
the principle of separation of powers."

Again, Marrero stayed enforcement of his ruling to enable the government to
appeal to the 2nd Circuit and to make any motion before him or the circuit for
whatever relief was needed to "maintain the confidentiality of any information
implicated by the court's ruling."

Attorneys for the American Civil Liberties Union, who brought the case on
behalf of a still-unnamed Internet service provider, were elated by the
ruling.

At a press conference, ACLU Executive Director Anthony Romero said the problem
with the law is that "it flips" traditional First Amendment requirements by
putting "the burden on NSL recipients" to go to court and prove a violation."

"The takeaway from this is that the FBI cannot be invested with the authority
to determine, by itself, without meaningful judicial oversight, which NSL
recipients should be allowed to speak," he said.

A spokeswoman for U.S. Attorney Michael Garcia said, "We are reviewing the
decision and considering our appellate options."

CONGRESSIONAL CHANGES

While the government's appeal of Marrero's 2004 opinion was pending, Congress
changed the law to remove a blanket prohibition on disclosing receipt of the
letter. The new §2709(c) called for a case-by-case determination by the FBI
that disclosure "may result" in danger to national security; interfere with a
criminal, counterintelligence or counterterrorism investigation; interfere
with diplomatic relations; or present a danger to the life or safety of any
person.

Under the provision, once the FBI makes a certification, it is treated as
conclusive, absent a court finding of bad faith.

And unlike the original provision, §3511 specifically provides for judicial
review of the request, including the potential to challenge the non-disclosure
requirement.

At the hearing in August, Assistant U.S. Attorneys Jeffrey Oestericher and
Benjamin Torrance said that the concerns expressed by Marrero in his 2004
ruling had been addressed by Congress.

Oestericher told the court that recipients of the letters were now in a
position to challenge them "at the outset, over time, and repeatedly over time
at one-year intervals." He also argued the law merely prevents people from
disclosing what they learned in the course of a government investigation.

But Jameel Jaffer, an ACLU attorney, argued that the law remained a prior
restraint on First Amendment speech and an unconstitutional move by Congress
to impose judicial deference to the executive branch.

Jaffer called the new judicial review provisions "purely cosmetic" and said
the law "invests executive officers with unbridled power to suppress speech."

He again charged indiscriminate use, and misuse, of the letters by the FBI, as
documented by a report by the Justice Department's Office of the Inspector
General.

The FBI issued 8,500 national security letter requests in 2000, but in the
wake of the Sept. 11, 2001, terror attacks the number increased dramatically,
peaking at 56,000 in 2004.

'PROFOUND CONCERNS'

Thursday, Marrero said the national security letter, while a valuable
surveillance tool, also "poses profound concerns to our society."

"Through the use of NSLs, the government can unmask the identity of Internet
users engaged in anonymous speech in online discussions," he said. "It can
obtain an itemized list of all of the emails sent and received by the target
of the NSL, and it can then seek information on individuals communicating with
that person. It may even be able to discover the websites an individual has
visited and queries submitted to search engines."

Even taking into account the "unique latitude and added flexibility national
security needs demand," he said, "the government must either affirmatively
terminate the nondisclosure requirement or bear the burden of justifying to a
court why continued secrecy is necessary within a reasonable time" of issuing
the letter.

And "in many ways most troubling" he said, the standard of review applied to a
challenge to a letter "offends the fundamental constitutional principles of
checks and balances and separation of powers."

EXACTING LEVEL OF REVIEW

Key to the judge's First Amendment analysis was his finding that the provision
is a prior restraint and content-based restriction, which subjects it to the
exacting "strict scrutiny" level of review.

And under strict scrutiny, he said, the process is "constitutionally deficient
under the First Amendment in several respects."

His solution was to allow the FBI to impose the gag order for a limited period
of time prior to judicial review, an approach, he said, that "balances the
strong First Amendment concerns at issue with the FBI's need to act quickly in
conducting counterterrorism investigations."

Marrero also harkened back to the internment of Japanese Americans during
World War II, and other examples, to outline the dangers that arise when the
judiciary abdicates its role of reviewing acts of Congress and the wielding of
executive power.

"Viewed from the standpoint of the many citizens who lost essential rights as
a result of such expansive exercises of governmental power unchecked by
judicial rulings appropriate to the occasion, the only thing left of the
judiciary's function for those Americans in that experience was a symbolic
act: to sing a requiem and lower the flag on the Bill of Rights," he said.

Federal Judge Rules Unconstitutional Parts of Patriot Act
Mark Hamblett
New York Law Journal
September 7, 2007

Congress' attempt to fix the problems with a key aspect of the USA PATRIOT Act
has failed to satisfy a Manhattan federal judge.

Southern District of New York Judge Victor Marrero Thursday ruled
unconstitutional a provision authorizing the FBI to issue a form of
administrative subpoena called a National Security Letter (NSL), finding that an
amended gag order on recipients of the letters still violated the First
Amendment.