A provision of the USA Patriot Act allowing the FBI to issue National Security Letters (NSLs) without court approval was deemed by a federal judge September 6 to violate the First Amendment. NSLs, which have been used to demand private information from libraries, telephone companies, internet service providers, and other data-gathering bodies, have been under scrutiny since a March internal FBI report detailing improper and illegal use by the Justice Department. Although Congress amended the NSL provision during last year’s Patriot Act reauthorization, Judge Victor Marrero of the U.S. District Court for the Southern District of New York ruled that the revision actually created additional constitutional problems, the New York Times reported September 7. In his 106-page ruling, Marrero wrote that NSL recipients remain “effectively barred from engaging in any discussion regarding their experiences and opinions relating to the government’s use” of the letters. The strains of persevering under such secrecy led to the high-profile lawsuit of the four librarians known as the “Connecticut John Does.”
The current lawsuit was brought to federal court on behalf of an anonymous ISP by the American Civil Liberties Union, which asserted that the FBI’s ability to demand records without obtaining court orders violated the concept of checks and balances. “As this decision recognizes, courts have a constitutionally mandated role to play when national security policies infringe on First Amendment rights,” said Jameel Jaffer, director of ACLU’s National Security Project. “A statute that allows the FBI to silence people without meaningful judicial oversight is unconstitutional.”
The American Library Association and the Freedom to Read Foundation prepared an amicus brief—written by attorney Theresa A. Chmara, a partner in the Washington, D.C. office of law firm Jenner and Block—in support of the lawsuit.
Enforcement of the ruling is on hold for 90 days, to give the Justice Department an opportunity to appeal the decision, according to the September 7 Washington Post.
Posted September 7, 2007.