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Digitizing the Bill of Rights

By Cynthia L. Webb
washingtonpost.com Staff Writer
Thursday, September 30, 2004; 9:52 AM

The Fourth Amendment to the U.S. Constitution prohibits the government from conducting "unreasonable searches" of our "persons, houses, papers, and effects" without a warrant. The First Amendment, of course, protects our right to free speech.

In the weeks after the Sept. 11 terrorist attacks, the U.S. Congress decided that these protections shouldn't apply similarly to Internet records. In passing the USA Patriot Act, lawmakers gave the FBI and other law enforcement agencies the right to secretly subpoena records from Internet service providers without any form of judicial oversight.

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Filter looks at the day's top technology news through snapshots and analysis of what the world's media outlets are covering. Washingtonpost.com's new Mon.-Fri. feature is penned by technology reporter Cynthia L. Webb. If a technology story breaks, a company falters or triumphs, or there's a new trend in technology, Filter wants you to know about it.

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Three years later, the Bill of Rights's application to the digital age got a big boost from New York federal Judge Victor Marrero, who ruled in favor of the American Civil Liberties Union, which sued the government on behalf of an undisclosed Internet service provider that was slapped with a Patriot Act subpoena. "The ACLU said that although its suit challenged letters issued for electronic communications, the judge's reasoning would apply with equal force to separate provisions that authorized searches for financial and bank records as well as credit reports," The Los Angeles Times reported in its coverage.
The Los Angeles Times: Provision of Patriot Act Is Ruled Unconstitutional (Registration required)
FindLaw.com: Text of Judge Marrero's Ruling (PDF)

The New York Times reported that the ACLU's case took issue with the ability of federal agents to issue special subpoenas, or national security letters, under the Patriot Act. In its challenge, the ACLU said the "provision was worded so broadly that it could effectively be used to obtain the names of customers of websites such Amazon.com or Ebay, or a political organization's membership list, or even the names of sources that a journalist has contacted by e-mail." The special "letters could be used in terrorism investigations to require Internet service companies to provide personal information about subscribers and would bar them from disclosing to anyone that they had received a subpoena," the article said. That means, technically, someone could not even tell their lawyer they had been subpoenaed.

In defending his ruling, Marrero "said the subpoena violated the Fourth Amendment because it did not allow for review by a court. He called it 'an ominous writ' that the F.B.I. issued 'in tones sounding virtually as a biblical commandment.' He said he worried that anyone who received a national security letter, except 'the most mettlesome and undaunted' targets, would feel barred from consulting a lawyer," the New York Times reported.
The New York Times: Judge Strikes Down Section of Patriot Act Allowing Secret Subpoenas of Internet Data (Registration required)

The Boston Globe said Marrero, a Clinton appointee, "also said that the letters may violate people's First Amendment-protected right to anonymous speech and freedom of association by enabling the government 'to compile elaborate dossiers on Internet users' -- including Web pages visited, e-mail subject lines, and pseudonyms used for web logging -- without judicial review and oversight."
The Boston Globe: Provision In Patriot Act Is Rejected

The Los Angeles Times noted: "The FBI has issued hundreds of these letters since the Sept. 11 terrorist attacks. The letters have drawn fire because they are issued without any court oversight or finding of probable cause and prohibit the recipients of the letters from ever disclosing that they have been received. Authorized by law since the mid-1980s, the letters have become more widely used since the Patriot Act gave the government greater discretion in issuing them in terrorism investigations. The Patriot Act permits widespread access to electronic communications such as basic subscriber information and call records from phone companies and e-mail and other Web-related information from Internet service providers. It does not, however, allow the government access to the actual contents of the communications."

A Battle Won, But the War Goes On

Challengers of the Patriot Act don't have an easy time ahead of them. "The ultimate impact of Marrero's order is unclear. In addition to having time to pursue an appeal, the government will view the ruling as applying only to New York's Southern District in Manhattan, legal experts said. I. Michael Greenberger, a Clinton administration Justice Department official who teaches law at the University of Maryland, said Marrero's order is unlikely to have any effect until an appellate court rules. But the ACLU argues that Marrero's ruling is a warning to the government about some of its tactics in the war on terrorism," The Washington Post reported. "This is a wholesale refutation of the administration's use of excessive secrecy and unbridled power under the Patriot Act," ACLU lawyer Ann Beeson told the Post. "It's a very major ruling, in our opinion."
The Washington Post: Key Part of Patriot Act Ruled Unconstitutional (Registration required)

The Bush administration, which has three months to mull the decision, is expected to appeal the ruling, citing national security needs. "We believe the act to be completely consistent with the United States constitution," Attorney General John Ashcroft said after the ruling, as quoted by the Associated Press. The ruling "marked the first time that surveillance power granted to federal agents under the USA Patriot Act has been ruled unconstitutional," USA Today said.
The Associated Press via Newsday: Ashcroft Likely To Appeal Patriot Ruling
USA Today: Court Strikes Down Patriot Act Provision

USA Today in its coverage noted "Marrero's decision comes as some members of Congress are trying to give U.S. agents more power to investigate terrorism, and President Bush is urging Congress to renew 16 Patriot Act provisions set to expire in December 2005. When Congress passed the Patriot Act in the weeks after the Sept. 11, 2001, terrorist attacks, it significantly expanded the surveillance power of federal law enforcement. The measure allowed the FBI and CIA to share evidence and gave terrorism investigators access to evidence-gathering tools that agents in criminal probes had used for years. In doing so, the Patriot Act amended several federal laws by, among other things, loosening standards for obtaining national security letters."


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