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Why the Court Was Right to Declare a USA Patriot Act Provision Dealing with National Security Letter Procedures Unconstitutional


Wednesday, Oct. 13, 2004

In late September, a federal district judge in New York, Victor Marrero, ruled that a key component of the USA Patriot Act is unconstitutional. The ruling made headlines, for it is the first to strike down any of the vast new surveillance powers authorized by the Act.

The provision at issue is Section 505 of the USA Patriot Act. It allows the FBI to demand certain information about customers and subscribers from email and Internet Service Providers (ISPs) -- without any judicial oversight or public review.

The American Civil Liberties Union (ACLU), along with an anonymous ISP, challenged the provision on the grounds that it violates the First Amendment and the Fourth Amendment.

The ISP had received a National Security Letter (NSL) from the FBI seeking customer records. (The ISP had to remain anonymous because the statute itself prohibits an ISP from disclosing receipt of an NSL.)

The judge has ordered the Justice Department to stop sending NSLs to ISPs and email providers in his district -- the Southern District of New York. But the judge has also delayed the injunction's start date by 90 days to allow for an appeal to the U.S. Court of Appeals for the Second Circuit.

In this column, I will explain why I believe the court's ruling was correct.

Background: The USA Patriot Act, and the Power To Use National Security Letters

A national security letter (NSL) is a piece of paper signed by an FBI agent, compelling disclosure of documents - such as credit reports, bank records, and telephone/Internet billing and transactional records. Unlike in the case of a warrant, no court reviews or approves an NSL; they are simply directly issued by the agent.

Originally, the law regarding NSLs limited the FBI's authority to issue NSLs to, in essence, investigations of foreign spies. NSLs could be issued only when there were specific and articulable facts, giving reason to believe that the person or entity to whom the information sought pertains was, or might be - or had communicated with -- a foreign power or an agent of a foreign power. In addition, the records being sought had to pertain to a suspected spy or possible terrorist.

But in 2001, with the USA Patriot Act, Congress abolished these limitations - requiring simply that the records sought by an NSL be needed for foreign counter-intelligence purposes.

. No individualized suspicion of the person whose records are being sought is required. No foreign government or agent needs to be involved. The FBI does not have to show a judge a compelling need for the records. Nor is there any way set forth by which the recipient could fight the NSL. Indeed, to the contrary, the fact of the NSL's receipt must, by law, be kept secret.

Subsequently, in 2004, Congress expanded the definition of companies from which information can be obtained, and abolished judicial review of NSLs. Now, the FBI may seek information from businesses such as insurance firms, pawnbrokers, precious metals dealers, the U.S. Postal Service, casinos, and travel agents.

The ACLU's challenge, however, only related to the disclosure of records by email or Internet service providers. In addition, the records at issue related to customers' billing information, subscriber information, and certain kinds of transactional information.

The ACLU's Challenges, and the Court's Rulings

As noted above, the ACLU and the anonymous ISP challenged the Patriot Act's provisions on NSLs to ISPs on three constitutional grounds.

First, they argued that the NSL chills First Amendment rights. When Internet users know that the government may subpoena their records - for instance, of a chat room political discussion - they will not speak as freely, out of fear they may be targeted.

Such fear, as the ACLU explains, may be entirely rational: The USA Patriot Act is worded so broadly that NSLs could now be used to obtain, for example, the names of customers of websites such or Ebay; a political organization's membership list; or even the names of sources that a journalist has contacted by e-mail.

The court agreed. In theory, it noted, the FBI could, for example, use an NSL to request information about persons who maintain a First-Amendment-protected anonymous online web log ("blog") critical of the government.

Alternatively, and equally troublingly, the court also noted, that e in addition, the FBI could "theoretically issue to a political campaign computer systems operator an NSL compelling production of names of all persons who have email addresses through the campaign's computer systems." While to some, this may seem far- fetched, the court was concerned about how this might impact our ability to freely associate and to speak freely.

Second, the ACLU and the anonymous ISP also contended that the provision that requires ISPs to keep silent even as to the fact that information has been requested from them violates the First Amendment.

Again, the court agreed - finding that this provision is both a disfavored "prior restraint" of speech, and a "content-based" speech restriction deserving (and failing) strict scrutiny by the court.

Third, the ACLU and the anonymous ISP argued that the NSL letters violate the Fourth Amendment Rights of the recipient - who must disclose information despite the lack of a warrant, or, indeed, of any meaningful judicial review.

Once again, the court agreed - finding a Fourth Amendment violation in the law's requirement of the "compulsory, secret, and unreviewable production of information."

Are NSLs Truly "Unreviewable"? Why the Court Said Yes

But were the NSLs actually "unreviewable"? After all, couldn't the ISP go to court anonymously to challenge the NSL - just as it was challenging the relevant Patriot Act provision?

The court said that in practice, the answer was no. Typically, the FBI coupled the NSL with a phone call, the court found. Moreover, neither the FBI, the NSL, nor the relevant statute mentioned any way to challenge the NSL. (By contrast, the court noted, there are set procedures to challenge administrative and criminal subpoenas in court.)

Thus, in practice, the judge found, recipients feel compelled to comply with the subpoena - and for this reason, the judge found that Fourth Amendment rights were "substantially curtailed by the manner in which the FBI administers" the relevant law.

The Court Was Right to Strike a Blow Against Secrecy

Among the strongest parts of the court's opinion was its excoriation of the secrecy built into the NSL laws. Under the law, the ISP is gagged for all time from discussing the government's NSL. In addition, the FBI's practice of coercing ISPs to respond, rather than going to court, also attempts to enforce secrecy. But the court held that permanent secrecy, in this context, is antithetical to our society's values.

Writing that "democracy abhors undue secrecy," Judge Marrero held that "an unlimited government warrant to conceal . . . has no place in our open society." He rightly worried that "[u]nder the mantle of secrecy, the self-preservation that ordinarily impels our government to censorship and secrecy may potentially be turned on ourselves as a weapon of self-destruction," and that "secrecy's protective shield may serve not as much to secure a safe country as simply to save face."

The court's decision to strike down a key portion of the Patriot Act comes as Congress considers whether to renew certain provisions of the Act. The court's ruling in the NSL ISP case shows why these provisions are clearly among those that should be revised to protect our rights.

Note: In an earlier column that may be of interest to readers, Professor Ramasastry discussed another ACLU suit regarding another part of the USA Patriot Act, which allows the FBI to obtain a variety of records and documents in terrorism and espionage cases by obtaining a warrant from the secret Foreign Intelligence Surveillance Act (FISA) Court. - Ed.

Anita Ramasastry is an Associate Professor of Law at the University of Washington School of Law in Seattle and a Director of the Shidler Center for Law, Commerce & Technology.

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