Parts of Patriot Act ruled unconstitutional
A US federal law, the USA Patriot Act, allows the Federal Bureau of Investigation (FBI) to compel communications companies, such as telephone and Internet providers, to turn over customer records to the FBI. The FBI issues a so-called “national security letter” to the company from which such records are sought. The FBI does not need a court order to issue such letters but rather can do so on its own initiative. Moreover, the law places a ban on disclosure, such that recipients of the letters are forbidden to tell their customers, or any other party, that the records have been turned over. The law further provides that courts have limited authority to review challenges to the ban on disclosure. The FBI views the letters and the ability to secretly gather such information as vital to their counterterrorism investigations.
A Justice Department report, issued in March of this year, found that the FBI often exercised its authority improperly and, on occasion, illegally.
A federal judge issued a ruling on September 6, striking down portions of the Act.
Following Judge Marrero’s injunction against the same law in 2004, Congress amended the Act to require the FBI, in each case, to certify that disclosure constituted a risk to national security or suchlike. The amended law permits judicial review of the FBI certification, but the permissible scope of review is very narrow. Moreover, the burden is on the company to show that the letter should not have been issued.
In his most recent decision, Judge Marrero found that the continued ban on disclosure prevents the communications providers from discussing their experiences and opinions regarding the demand for customer records. This violates the constitutional guaranteed right of freedom of speech. He also fears that reducing judicial review of issues that touch upon constitutional guarantees could lead to extensive invasion of privacy. In doing so, he drew a comparison to old Supreme Court decisions allowing internment of Japanese-Americans during World War II and racial segregation on trains in the 19th century.
Judge Marrero has stayed enforcement of his decision to allow the government to decide whether to appeal. This will protect any national security interests while allowing the judicial process to continue. The government has not yet decided whether it will appeal the decision.
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