Reaffirming liberty

October 01, 2004

JUST BECAUSE THE FBI says so isn't a good enough reason to trample rights guaranteed Americans in the First and Fourth amendments, a U.S. District Court judge ruled Wednesday. Not much of a stretch to figure that one out, but count on the administration to appeal the decision.

Judge Victor Marrero struck down the piece of the USA Patriot Act that allowed the FBI - without judicial oversight or finding of probable cause - to order Internet-access and telephone firms to hand over customer records and never tell anyone that they had done it. Not their lawyers, not their customers, not their great-great-grandchildren 50 years from now. One such provider finally did tell a lawyer, which is how the lawsuit got filed, but hundreds of others have held their tongues, according to Judge Marrero.

If this decision stands, it could also negate the "national security letters" that also are served on banks, financial firms and credit reporting centers, as well as eternal gag orders.

FOR THE RECORD - An editorial Friday about a judge's ruling on federal surveillance powers incorrectly referred to the powers as a piece of the Patriot Act. The powers were established under a 1986 law, and were modified under the Patriot Act. The Sun regrets the error.

These letters, a form of administrative subpoena, have been used to investigate the doings of suspected terrorists or spies, but under the 2001 Patriot Act, their use was extended to those whom the FBI believes are "relevant" to a terrorism investigation. Worded that way, in a "six degrees of separation" society knit closer by its growing electronic ties, nearly everyone could be found relevant.

What if a suspected terrorist - or someone with the same name - sent spam e-mail to every member of Congress? The FBI could look at all other e-records for senators and representatives without showing cause and without telling them, and forbidding their Internet service providers from telling them, either.

Americans don't need to give up their right to contest government searches in order to be safe. They shouldn't be gagged in perpetuity - also called prior restraint on free speech - without a chance to ask a judge why. They shouldn't be cowed by a sternly worded directive from the FBI threatening them with legal action for not complying when in fact they do not have to comply; they can force the department to ask a judge for a standard warrant.

There is plenty of good in the 350-plus-page Patriot Act, a few parts of which are due to expire in 2005. This search procedure, though, is one that needs fixing. Saving time by not getting a straightforward warrant, which can include a gag order if the FBI proves it's needed, isn't tradeoff enough for losing guaranteed civil rights.

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