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Judge Invalidates Patriot Act Provisions

The new legislation essentially required the courts to go along with the gag orders as long as the FBI certified that the secrecy was justified. Marrero suggested in his decision that Congress could solve the problems by more sharply limiting the FBI's ability to silence recipients while allowing more oversight from the courts.

Marrero, who was appointed by President Bill Clinton in 1999, warned of "far-reaching invasions of liberty" when the courts refuse to set limits on government power. He pointed specifically to Supreme Court rulings that sanctioned the internment of Japanese Americans in World War II and upheld racial segregation in schools and other public accommodations.

Most lawmakers were quiet about yesterday's ruling. Sen. Russell Feingold (D-Wis.), the only senator to vote against the original Patriot Act in 2001, said in a statement, "Congress needs to fix the mess it created when it gave the government overly-broad powers to obtain sensitive information about Americans."

Gregory Nojeim, senior counsel at the Center for Democracy and Technology, a privacy group, said the ruling, if it stands, should provoke Congress to enact new legislation. "Congress will need to amend the NSL statute to put in place a system of prior judicial review. . . . That's something it should have done six years ago in the original Patriot Act."

The issue of national security letters poses a dilemma for telecommunications carriers, which want to comply with government efforts to fight terrorism but also want to be seen as respecting customers' privacy, said Herbert Fenster, a director of the U.S. Chamber of Commerce's National Chamber Litigation Center who has represented major carriers.

"There is a natural tension between good citizenship on the one hand and sound business judgment on the other," he said. "When complying necessitates that they partner with the government, and when it all comes out [in public], it's bad for business."

Fenster said there have been cases in which carriers questioned NSLs and in a few cases, the NSLs were withdrawn. Sometimes, there was a compromise. In some cases, the demand letter was eventually made public.

Justice Department and FBI officials have strongly defended their use of NSLs and say they have implemented numerous reforms to lower the number of privacy violations. Administration officials have also characterized the letters as a crucial method of quickly obtaining information in the early stages of an investigation.

Kenneth Wainstein, head of the Justice Department's National Security Division, told the House intelligence committee earlier this year that NSLs are "important building blocks in national security investigations, and we must continue [to] use them if we are to be successful at heading off the threat of international terrorism in the United States."

Staff writer Ellen Nakashima contributed to this report.

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