September 6, 2007 1:11 PM PDT

Judge deals blow to Patriot Act

A key portion of the Patriot Act is unconstitutional and violates Americans' free speech rights, a federal judge said Thursday in a case that could represent a bitter setback for the Bush administration's attempts to expand its surveillance powers.

U.S. District Judge Victor Marrero said the section of the Patriot Act that permits the FBI to send Internet service providers secret demands, called national security letters, for customer information violates the First Amendment and unreasonably curbs the authority of the judiciary.

FBI agents can use NSLs to surreptitiously obtain logs of American citizens' e-mail correspondence, a list of Web sites visited and queries submitted to search engines, without obtaining a judge's approval in advance. NSLs can also be used to obtain bank and telephone records. They are supposed to be used only when an investigation is allegedly relevant to a terrorist investigation.

FBI's surveillance push

The Patriot Act expanded the FBI's use of national security letters, which are secret and powerful demands for business records. The FBI can use them to obtain an itemized list of all the e-mails sent and received by the target of the NSL, and it can seek information on individuals communicating with that person. It can even discover the Web sites an American citizen has visited and queries submitted to search engines. The use of NSLs increased dramatically after September 11, 2001, as you can see by these partial figures made available by the Justice Department's inspector general (click for PDF). Each row represents the total NSL requests made during that calendar year.

2000: About 8,500

2003: 39,346

2004: 56,507

2005: 47,221

In a 106-page decision (click for PDF), Marrero said the gag orders that can accompany NSLs are not "sufficiently narrowly tailored" to survive First Amendment review. In addition, he said, the law's attempt to limit judicial review "offends the fundamental constitutional principles of checks and balances and separation of powers" and "reflects an attempt by Congress and the executive to infringe upon the judiciary's designated role under the Constitution."

Marrero barred Attorney General Alberto Gonzales and FBI Director Robert Mueller from issuing NSLs, but delayed the effective date of the prohibition for 90 days to give the Bush administration a chance to appeal.

Although the U.S. Department of Justice is expected to appeal the ruling to the U.S. Court of Appeals for the 2nd Circuit, it declined to confirm its plans on Thursday. A spokesman said only that "we're reviewing the decision and considering our options at this time."

The lawsuit was brought by the American Civil Liberties Union, which applauded Thursday's ruling. "Courts have a constitutionally mandated role to play when national security policies infringe on First Amendment rights," said Jameel Jaffer, director of the ACLU's National Security Project. "A statute that allows the FBI to silence people without meaningful judicial oversight is unconstitutional."

A report published in March by the Justice Department's inspector general found "serious misuse" of NSLs on the part of the FBI. But because unlawful use of NSLs is not a crime--unlike conducting an unlawful wiretap, which is a federal felony--no prosecutions were brought. Also in March, The Washington Post published a first-person account by the president of an Internet company who received an NSL. "I resent being conscripted as a secret informer for the government" for the past three years, the writer said.

In an odd twist, this is the second time that Marrero, a judge in the Southern District of New York, has struck down NSLs as unconstitutional.

The first ruling came in September 2004, when he ruled that the NSL portions of the original version of the Patriot Act enacted three years earlier were unconstitutional.

After the Justice Department appealed, the 2nd Circuit Court of Appeals temporarily blocked Marrero's order from taking effect during the course of the appeal. But before the appeal was complete, Congress rewrote portions of the Patriot Act including the NSL section, which led the appeals court to send the case back to Marrero to evaluate whether the revisions passed constitutional muster.

Such letters are not new. Before the Patriot Act was enacted a few weeks after the September 11, 2001, terrorist attacks, they could be used in investigations of suspected terrorists and spies. But after the change to the law, the FBI needed only to say that a letter may be "relevant" to a terrorist-related investigation. No court approval is required.

NSLs to telecommunications firms originated with a 1986 law called the Electronic Communications Privacy Act, which permitted them only in relation to an investigation of "an agent of a foreign power." That once-strict requirement was broadened in 1993 and again by the Patriot Act eight years later.

The most recent changes to NSLs came in mid-2006 with the revisions to the Patriot Act. It said that senior FBI officials could forever prohibit the recipient from disclosing the existence of the NSL "to any person" other than their lawyer with five years in prison as a punishment.

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55 comments

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Finally some sense
It is a relief to see that finally, some sense has prevailed, and the railroading of our Constitutional Rights may have finally been thrown off track.

Hopefully the senate and congress are paying attention as it seems our rights and well being take a back seat to profit these days.

Hopefully there are more judges like Judge Victor Marrero out there...
Posted by EirenO (7 comments )
Reply Link Flag
Yeah, right, EirenO
When we are again attacked by Al Qaeda, and bodies lie in the streets, you can say, "yeah, but at least my rights were protected." What a moron.
Posted by Jaksprat (3 comments )
Link Flag
Actually, Blow to America
The only people that are afraid of things in the Patriot Act are those that have something to hide. We criticize the FBI and CIA for 9/11, then don't want them to do the right things to protect America. Too much paranoia.
Posted by Jaksprat (3 comments )
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only ... those with something to hide
I'm sure the people of Germany, in the 1930's, thought the same thing.
Posted by rcrusoe (1305 comments )
Link Flag
Why do people keep repeating the "if you have nothing to hide..." line
"The only people that are afraid of things in the Patriot Act are those that have something to hide."

Of course we all have things to hide, it's called privacy. The problem is you can justify and any invasion with that phrase. Let's carry this "nothing to hide, nothing to fear" logic to an extreme. Since you have nothing to hide you won't mind if camera's are installed in your house to cover every angle and every nook and crany and left on and monitored 24/7/365.

A few responses to the assertion "if you have nothing to hide, you have nothing to fear" and why it's incorrect:

1. If I am not doing anything wrong, you have no cause to watch me

2. Because the government gets to define what's wrong, and they keep changing the definition.

3. Because you might do something wrong with my information.

4. It assumes that the government is full of good people who are infallible and would never abuse their power (something history tells us is not the case). Even if by some chance it is true at this momment, we can not be sure it remain so in the future. The system of checks and balances serves as protection from such corruption.


"Too much paranoia"

Apparently you have read any of the FBI's history.
When given power without an appropriate check, they've abused it. The Nixon era alone is enough reason to be skeptical of unchecked government power. They've already admitted around 3,000 NSLs were obtained and used improperly.
T

Given the FBI's history of abuse, judical oversight is a must
Posted by unknown unknown (1951 comments )
Link Flag
Camera in your bedroom
it's on its way... thanks for volunteering
Posted by Mark Greene (163 comments )
Link Flag
If only the NEOCONS could get rid of that pesky Constitution
I think we can safely say that our country has divided itself into two respective groups: Morons, and Bankers. The Bankers control every aspect of the Moron's lives, and the Morons barely know how to survive on a daily basis.

Luckily in this case study, we have a Judge who grew up in the last era where annual educational funds weren't less than the cost of a single B2 Bomber. Fortunately for the World Bankers, this Judge will be overturned before the drama is over, the Patriot Act will be upheld, and nothing will have ever changed.

You can't stop the World Banks. The run all countries respectively, and control information in all sectors...including this website. The produce the candidates with great resumes and the organizations snap them up not knowing that they are loyal to groups that have been in control for centuries.

Fear not, you have no control, you will never have any control, and that's they way you like it.
Posted by drtyrell (26 comments )
Reply Link Flag
obviously one of the proud morons
Freedom in this country is no good if you lose the country dumb ass!
Posted by blueyes123 (54 comments )
Link Flag
Nothing worse than a liberal geek
Dude, pack your politics in your old HP lunchbox bag and go reformat your disk you weanie.
Posted by Schratboy (122 comments )
Link Flag
Morlocks & Elois
<a class="jive-link-external" href="http://en.wikipedia.org/wiki/The_Time_Machine" target="_newWindow">http://en.wikipedia.org/wiki/The_Time_Machine</a>
Posted by ColdMast (186 comments )
Link Flag
Clinton croney rises again
A Clinton appointed judge rises to the occasion, like scum on a pond, further hampering US effort to fight terrorism.
Posted by Schratboy (122 comments )
Reply Link Flag
O.K. but.......
did you consult the rest of the population of this planet before you launched them into your war on terrorism?

In whose interest is it anyway?

I don't recall being asked.

Why bother anyway, the whole debacle unravelled with or without consideration of my rights.

Good on the "Clinton appointed judge", if you don't agree with him, then I think I do.

This whole neo-con thing rolls steadily onwards,
ignorant of the rights of those who do not subscribe to their "world view", and enduring fear of a world that doesn't conform to their blinkered
ignorance.

Stick that in your pipe and smoke it.
Posted by m.o.t.u. (96 comments )
Link Flag
Witch hunts are back
Witch hunts are not an effective method of fighting terrorism. They are a form of terrorism, remember back to the McCarthy days? This is only about having suitable process to prevent abuse. If you like abuse then fine...
Posted by Kimsh (813 comments )
Link Flag
Freedom!
Ok now, everybody sing...."Freedom's just another word for nothing left to lose....."
Live free or die trying!! Amen.
Posted by anthonyv60 (7 comments )
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fear and loss of constitutional freedoms
The fact that we as a country will allow our constitutional freedoms to be taken by the government piece by piece on the basis that fear of terrorists requires it, and that other nations, like the UK have these things in place already in their societies, really means that the terrorists are winning.
Posted by tea party (1 comment )
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Disgusting Bush
This administration is simply disgusting. It is unscrupulous and is the worse administration ever. It is run with oil/blood money. Instead of hunting terrorists hiding in Pakistan and capturing Osama bin laden, this admin is more interested in my phone sex records. It's time to send time packing when we vote for Hillary in 2008!
Posted by Ghent2007 (3 comments )
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Sounds just like 2004
Hildog?? No thanks she voted for the war in Iraq she has got as much integrity as any politician. Do even think i will vote it really never does any good its like choosing between a turd sandwich and a giant ******.

Go Cows!

Mike
Posted by mxrss (35 comments )
Link Flag
Real men stand up to fascism
In the 1930s, Hitler scared the German people by having his Nazi party burn the parliament building and blaming it on the communists. He then used that as an excuse to become dictator to "protect" the people from the communist threat. I'm sure people were told that if they didn't "have anything to hide", they wouldn't mind the Nazi government looking into every aspect of their lives. Of course, soon non-allegiance to the Nazi party was declared a crime. Look what happened.

If you're really a patriot, you will defend the constitution. If you're a coward, you'll defend the elite who want to subvert it.

Real men stand up to fascism. Cowardly men become boot lickers.
Posted by chris_d (195 comments )
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The terrorists will hit us hard
The terrorists will hit us hard and it will be the fault of liberal judges who put individual "rights" abouve our safety. The traitors blood shall be upon them.
Posted by Lorenzo76108 (1 comment )
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Security?
Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.
Benjamin Franklin, Historical Review of Pennsylvania, 1759
Posted by blu64 (1 comment )
Link Flag
Quit that!
September 2007, Bin Laden is alive and well.

This tells me this: no matter how hard the Bush administration tries to pass laws trampling our privacy rights, they are unable to do anything useful with the information they collect. Obviously, these terrorists must be either using old school communication techniques (like oh, smoke signals, invisible ink, etc.) or they are using top-notch encryption technology that even in 50 years no one will be able to crack.

So spying on everyone trying desperately to fish for something is not the way. The few wannabe terrorists that get caught in the process deserve to be caught, but the top-dogs remain at large (unless they get sold-out by disgruntled ex-collaborators).

How about we fix these wide-open borders first??? Why waste everybody?s time with security checkpoints &#38; fingerprinting at airports when every ?terrorist? can walk right in down south? Saying that throwing out the Patriot Act would increase our risk for terrorist attacks is, to me, Bush propaganda, nothing more.
Posted by SwissJay (115 comments )
Link Flag
Yesterday's Message
With the release of yesterday's message, I sincerely hope that we all now realize that there is a true threat.

I hope we all remember the last time a mad man wanted the entire world to look the same and have the same religious beliefs.

As far as I am concerned, all of The Patriot Act can stay right where it is for now. We have too many people posting too many messages about the dissatisfaction they feel with this government.

Fighting publicly about your own country is a time of war is just what the enemy needs!
Posted by Claire Gaeta (22 comments )
Reply Link Flag
If we did not speak out, we'd still be in Viet Nam.
It seems you would have us tape the mouths of the dissenting opinion speakers. That my fellow citizens think we should stifle criticism of the policies of our president is understandable in a fear based world, but we must live free and fear based actions will never free us. Teach us not to speak up about the oppression of the president, and we won't speak up when a suspicious terrorist shows up in our midst.
Posted by macwain (7 comments )
Link Flag
Locked in to your position?
In order for this country to gain its freedom, the British forces occupying our country had to be fought, and many died.
Mr. Bush seems to have to think for the short term to be popular (does not work obviously) and so destroys the founding principles of this nation. OMG it is such a disaster to erode the constitution. Let us live in total safety as robots carefully watched, or let us live at risk with our freedom intact. I am ashamed of my president, and where this country is going. Please shut down the power of this president as the constitution was designed to do. Erosion of the balance of power in the three branches of government is the biggest disaster in our history, eclipsing any 9/11 occurence.
Thank you Judge, may more of us take a stand to protect our privacy. I don't think I have anything to hide, but I reserve the right to.
Ashamed fellow born in the USA
Posted by macwain (7 comments )
Reply Link Flag
Administrative subpoenas
Administrative subpoenas of this nature spook me. Corporations will usually comply without a fight.

The agency, an unreferenced concept in the constitution plays a greater role in our lives than what most people think.
Posted by R.Jefferson (136 comments )
Reply Link Flag
Support Common Sense Freedom
My own thoughts are that a common concept of freedom is at the foundation of what the government should do to maintain both security and freedom. I think we need to support "common sense" freedom.

Common Sense Freedom
Freedom does not require democracy. Outrageous? From the statements made by many politicians on the left and right, you would think that establishing democracy in a nation automatically establishes freedom. According to my understanding of the meaning of the word freedom, that is not true. Just because a majority of a population gets their way does not mean their nation is free anymore than a nation where only the tyrant and his/her groupies get their way is a free nation. Saddam Hussein and Adolph Hitler would probably argue that they have all the freedom in their nation one would need and those who have a problem with the government monitoring them must be doing something wrong! The meaning of freedom can obviously vary with each individual. Freedom's definition is like a box that can contain a few or many different items that determine its meaning. My definition for freedom is the right of all humans to choose to believe, think, communicate and/or act as they choose, unhindered by any other individual, group or government, as long as that freedom does not cause significant physical harm to another human. I leave out psychological harm, not because it is not real, but because it is primarily subjective and is hard to measure objectively. A person can become obsessed for example after finding out that another person has sexual fantasies about them having various kinds of sexual interactions together. This person can choose to make him/herself a victim by obsessing over this knowledge. He/she is not directly physically hurt by the thoughts of the fantasizer but he/she might choose to obsess over it to where they are psychologically damaged and eventually physically damaged. As another example, a parent may not approve of a child because of his/her behavior and the child may continue to feel like they are no good their whole life. Justice is not served by these free will "victims" causing the freedom of the supposed victimizer to be curtailed. I do not believe one human's freedom should be taken away because another human, group or government hates that human's choice and might even believe it is evil, like listening to heavy metal or rap music. For a nation to be truly free, the ruling powers, president or king, majority or minority, must recognize that all humans have been given certain inalienable rights by their creator. Much of the Patriot act would not be supported by our nations original patriots. We need to return to a common sense balanced approach to freedom and security.
Posted by SpiritMatter (68 comments )
Reply Link Flag
An Idea for McWain
I invite you to leave the country you abhor, go live in a land where you can roam freely and do as you please. Can't find one? Perhaps you should think about your shame. No one can make anyone ashamed anymore than they can make them happy. I suggest a little self-examination.
Posted by Claire Gaeta (22 comments )
Reply Link Flag
Claire - I'm learning this is a far-left hate site
I'm only making one comment, and then I'm off this left-leaning site forever. Claire's one of the few people who seem to love America. The REASON you "rights" fanatics are able to enjoy those rights is because of the men who both died AND lived fighting for this country. And, of course the Constitution is a wonderful document, written by dedicated freedom-loving people who fought for their freedom. If we had turned this country over to the far left, we would all be speaking German right now - or Farci in the future. Seoncdly, the problem isn't with the Presidency - and even this ineffective Congress isn't to blame for the MAJOR problems I see. It's the liberal and biased judicial branch that suddenly thinks that interpreting the law is the same thing as legislating through the judiciary. And for those of you who want to compare the twin-towers tragedy to crime on the street or traffic accidents, I'm not sure what planet you're from. This is a wonderful country, and I agree that if you don't love it - leave it. To you FBI, CIA, NSA, NCIS, OSI, CIC CID, Homeland Security and Border Patrol haters: You have NO IDEA what the brave men and women of these organizations have done and conti9nue to do everyday to protect your freedoms and your very lives. You're probably too naive to ever know. As I said, I'm outta here. I'm sure you left wing morons will be happy to hear that. Now you can all just preach to each other, and don't let the bogey man with the phone-taps on foreign terrorists frighten you. Boo.
Posted by Jaksprat (3 comments )
Link Flag
Thank You
Right, Wrong or indifferent...this is our country. I watched the footage from September 11, 2001 recently, and it raised some questions.

Where did the story originate that President Bush ignored terrorist attacks and read to children instead. The replay of the press statement made on that day by President Bush and his apology for cutting his visit short to the students in question seems to lead this back to the likes of Rosie O'Donnell and others.

It seems that common words among the leftists are "me", "my", "mine" and I. There is no consideration of the greater good and decorum and respect have long been lost.

The FBI is not interested in your extramarital affairs, your drug activity or the fact you failed to report $5.00 in interest on your taxes.

Recent arrests of students with pipe bombs right here make a strong arguement for continued security.

I have a pot of coffee on if anyone needs to wake up!
Posted by Claire Gaeta (22 comments )
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