2nd Patriot Act provision ruled unconstitutional

Lack of judicial oversight cited in FBI's issuing of `administrative subpoenas'

September 30, 2004|By Richard B. Schmitt | Richard B. Schmitt,LOS ANGELES TIMES

WASHINGTON - A federal judge yesterday curtailed the government's power in terrorism investigations under the USA Patriot Act, saying a provision widely used to obtain records from communication firms violated the Constitution by allowing "coercive searches" without judicial review.

The 120-page ruling, by U.S. District Judge Victor Marrero in New York, came in a lawsuit filed by the American Civil Liberties Union on behalf of an Internet service provider that had received a form of administrative subpoena known as a national security letter. The FBI has issued hundreds of such letters since the Sept. 11 terror attacks.

The letters have been criticized because they are issued without court oversight or any finding of probable cause, and because they prohibit the recipients from disclosing their existence. Authorized by law since the mid-1980s, the letters have become more widely used since the Patriot Act was enacted.

"Today's decision is a stunning victory against the John Ashcroft Justice Department in striking down one of the major surveillance portions of the USA Patriot Act," said Anthony Romero, the executive director of the ACLU.

The decision marks an unusual defeat for the Justice Department and the Patriot Act, the terrorism-fighting law enacted shortly after the Sept. 11 attacks.

The law has been assailed for compromising civil liberties and has spawned considerable litigation. Until yesterday's decision, though, only one constitutional challenge had been successful: In January, a federal judge in Los Angeles, citing the free speech provision of the First Amendment, ruled against the part of the act that makes it illegal to "give expert advice or assistance" to foreign terrorist groups.

In a report issued in July, the Justice Department contended that the act has been effective, saying some of its provisions were instrumental in the disruption of alleged terrorist cells in upstate New York and Oregon.

ACLU officials said the reasoning in yesterday's ruling, including criticism of the government for undue secrecy, could be used to attack other sections of the Patriot Act.

In a separate suit, the group is challenging a provision that gives the government wide access to business records. Like the act's section on national security letters, that provision also strictly prohibits those receiving the demands from disclosing them.

The suit over the national security letter was filed under seal because the ACLU feared that it might be accused of violating the act's nondisclosure provision. The letter's recipient was identified only as "John Doe" in the suit.

A Justice Department spokesman said officials were reviewing the decision and declined to comment further.

The ruling was stayed for 90 days to give the government time to appeal. The ruling does not prohibit the government from getting the information, only the means through which it has been obtained.

In its suit, the ACLU argued that the law gave the FBI unchecked power to obtain private information and allowed recipients no opportunity to challenge the requests. In effect, the law gave the FBI alone the power to issue and enforce its own letters, the ACLU argued.

The group also said that the permanent ban on disclosing the existence of the requests, even to an attorney, was an unconstitutional restraint on free speech.

The government argued that the statute implicitly gave recipients of national security letters the opportunity to challenge the demands in court, just as they could any other subpoena.

It also argued that the prohibition on disclosure was essential in protecting the integrity of investigations.

But Marrero declined to read such safeguards into the law. In practice, he said, the law operated in a way that coerced recipients into complying.

"Objectively viewed, it is improbable that an FBI summons phrased in tones sounding virtually as biblical commandment ... would not be perceived with some apprehension by an ordinary person," the judge wrote.

Marrero said he was also concerned that the law could result in violations of customers' constitutional rights through the production of information protected by the First Amendment, such as e-mail or telephone lists of political organizations.

He added that although he appreciated the need for the government to keep sensitive investigations under wraps, he found the "automatic, categorical and permanent scope" of the gag order to be excessive.

Unlike subpoenas issued through a grand jury, administrative subpoenas are issued on the authority of an agency itself and are common among regulatory entities.

But there has always been a reluctance to give this kind of power to the FBI without the involvement of a prosecutor, a grand jury or a judge.

In general, the law has allowed the government to obtain stored electronic data without a customer's permission only through a subpoena or court order.

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