Yesterday controversial elements of the Patriot Act were ruled unconstitutional by federal district court judge Victor Marrero. The Patriot Act, passed shortly after the Sept. 11 attacks, broadly expanded the government’s powers to conduct anti-terrorism investigations. In its original form the Patriot Act granted the FBI, among other things, the power to issue “national security letters” (NSLs) that would compel search engines, ISPs, phone companies, libraries and other public sources of information to turn over their customer records. Because the Patriot Act also permanently barred targets from disclosing to their customers that information had been requested, we have no idea how many of these requests have been made to search engines. We do know that thousands of NSLs have been issued in service to counter terrorism efforts.
U.S. District Judge Victor Marrero ruled portions of the Patriot Act unconstitutional. Marrero said the non disclosure provisions for NSL recipients violated their First Amendment rights (freedom of speech). He also ruled that the process for issuing the letters undercuts the role of the courts, a violation of the principle of separation of powers under the Constitution. This is not the first challenge to the broad provisions of the Patriot Act. A previous ruling in 2004 resulted in revisions when the Patriot Act was renewed this year that give recipients of the letters a limited right to challenge in court the non disclosure gag orders.
The NSL has been a popular counter-terrorism tool since it can be issued without court approval or subpoena. It has, however, been the subject of substantial controversy and criticism.
It is expected that the Justice Department will strongly challenge yesterday’s ruling. The lawsuit which resulted in this ruling was brought by the American Civil Liberties Union and for those with a legal interest or extreme insomnia will find the entire report here on the ACLU site.