Judge Invalidates Patriot Act Provisions

FBI Is Told to Halt Warrantless Tactic

A federal judge struck down controversial portions of the USA Patriot Act in a ruling that declared them unconstitutional yesterday, ordering the FBI to stop its wide use of a warrantless tactic for obtaining e-mail and telephone data from private companies for counterterrorism investigations.

The ruling by U.S. District Judge Victor Marrero in New York said the FBI's use of secret "national security letters" to demand such data violates the First Amendment and constitutional provisions on the separation of powers, because the FBI can impose indefinite gag orders on the companies and the courts have little opportunity to review the letters.

The secrecy provisions are "the legislative equivalent of breaking and entering, with an ominous free pass to the hijacking of constitutional values," Marrero wrote. His strongly worded 103-page opinion amounted to a rebuke of both the administration and Congress, which had revised the act in 2005 to take into account an earlier ruling by the judge on the same topic.

Although a government appeal is likely, the decision could eliminate or sharply curtail the FBI's issuance of tens of thousands of national security letters (NSLs) each year to telephone companies, Internet providers and other communications firms. The FBI says it typically orders that such letters be kept confidential to make sure that suspects do not learn they are being investigated, as well as to protect "sources and methods" used in terrorism and counterintelligence probes.

The ruling follows reports this year by Justice Department and FBI auditors that the FBI potentially violated privacy laws or bureau rules more than a thousand times while issuing NSLs in recent years -- violations that did not come to light quickly, partly because of the Patriot Act's secrecy rules.

"The risk of investing the FBI with unchecked discretion to restrict such speech is that government agents, based on their own self-certification, may limit speech that does not pose a significant threat to national security or other compelling government interest," Marrero said.

The Justice Department declined to comment on the ruling. "We are reviewing the decision and considering our options," said spokesman Dean Boyd.

But Anthony D. Romero, executive director of the American Civil Liberties Union, which filed the lawsuit in the case, said the ruling "is yet another setback in the Bush administration's strategy in the war on terror and demonstrates the far-reaching efforts of this administration to use powers that are clearly unconstitutional."

Marrero's decision would bar the use of NSLs to demand data from electronic communications companies, a procedure that was the focus of the lawsuit. But the ruling appears to leave untouched the FBI's ability to demand bank records, credit reports and other financial data related to counterterrorism and other probes, because those authorities are covered by other statutes, according to legal experts. Marrero delayed enforcement of his order for 90 days to give the government a chance to appeal.

Although the FBI has had the ability to issue NSLs for many years, the Patriot Act, enacted in October 2001, significantly relaxed the rules for using them while increasing the secrecy requirements. The result has been a surge in NSL requests, from fewer than 9,000 in 2000 to nearly 50,000 in 2005, according to Justice Department records.

Yesterday's ruling marks the second time that Marrero has struck down the Patriot Act's NSL provisions. In 2004, after the ACLU filed suit on behalf of the same plaintiff -- an Internet service provider identified as John Doe -- he ruled similarly that the NSL provisions were unconstitutional because they silenced recipients and gave them no recourse through the courts.

While a government appeal was pending, Congress passed legislation in 2005 aimed at solving the problems identified by Marrero. But the judge ruled yesterday that the revisions were not adequate and that under the new law, "several aspects . . . violate the First Amendment and the principle of separation of powers."