Judge Invalidates Patriot Act Provisions
FBI Is Told to Halt Warrantless Tactic

By Dan Eggen
Washington Post Staff Writer
Friday, September 7, 2007

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."

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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