Judge Voids F.B.I. Tool Granted by Patriot Act

By ADAM LIPTAK
Published: September 7, 2007
A federal judge yesterday struck down the parts of the recently revised USA Patriot Act that authorized the Federal Bureau of Investigation to use informal secret demands called national security letters to compel companies to provide customer records.

The law allowed the F.B.I. not only to force communications companies, including telephone and Internet providers, to turn over the records without court authorization, but also to forbid the companies to tell the customers or anyone else what they had done. Under the law, enacted last year, the ability of the courts to review challenges to the ban on disclosures was quite limited.

The judge, Victor Marrero of the Federal District Court in Manhattan, ruled that the measure violated the First Amendment and the separation of powers guarantee.

Judge Marrero said he feared that the law could be the first step in a series of intrusions into the judiciary’s role that would be “the legislative equivalent of breaking and entering, with an ominous free pass to the hijacking of constitutional values.”

According to a report from the Justice Department’s inspector general in March, the F.B.I. issued about 143,000 requests through national security letters from 2003 to 2005. The report found that the bureau had often used the letters improperly and sometimes illegally.

Yesterday’s decision was a sequel to rulings by Judge Marrero in 2004 and a federal judge in Connecticut in 2005, both of which enjoined an earlier version of the law. Congress responded last year by amending the law in reauthorizing it.

The earlier version of the measure barred all recipients of the letters from disclosing them. The amended law changed the ban slightly, now requiring the F.B.I. to certify in each case that disclosure might harm national security, criminal investigations, diplomacy or people’s safety.

The law authorized courts to review those assertions, but under extremely deferential standards. In some cases, judges were required to treat F.B.I. statements “as conclusive unless the court finds that the certification was made in bad faith.”

In yesterday’s decision, Judge Marrero said that the revisions to the law did not go far enough in addressing the flaws identified in the earlier decisions and that in fact they created additional constitutional problems.

Recipients of the letters, he wrote, remain “effectively barred from engaging in any discussion regarding their experiences and opinions related to the government’s use” of the letters. Indeed, the very identity of the Internet service provider that brought this case remains secret.

The judge said the F.B.I. might be entitled to prohibit disclosures for a limited time but afterward “must bear the burden of going to court to suppress the speech.” Putting that burden on recipients of the letters, he said, violates the First Amendment.

The decision found that the secrecy requirement was so intertwined with the rest of the provision concerning national security letters that the entire provision was unconstitutional.

Judge Marrero used his strongest language and evocative historical analogies in criticizing the aspect of the new law that imposed restrictions on the courts’ ability to review the F.B.I.’s determinations.

“When the judiciary lowers its guard on the Constitution, it opens the door to far-reaching invasions of privacy,” Judge Marrero wrote, pointing to discredited Supreme Court decisions endorsing the internment of Japanese-Americans during World War II and racially segregated railroad cars in the 19th century.

“The only thing left of the judiciary’s function for those Americans in that experience,” he wrote, “was a symbolic act: to sing a requiem and lower the flag on the Bill of Rights.”

Lawyers for the American Civil Liberties Union, which represented the Internet company, said Judge Marrero had confirmed a bedrock principle.

“A statute that allows the F.B.I. to silence people without meaningful judicial oversight is unconstitutional,” said Jameel Jaffer, an A.C.L.U. lawyer.

Judge Marrero delayed enforcing his decision pending an appeal by the government. Rebekah Carmichael, a spokeswoman for the United States attorney’s office in Manhattan, said the government had not decided whether to file one.