Manage updates with the Download AppSeptember 6, 2007 1:11 PM PDT
Judge deals blow to Patriot Act
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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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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...
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
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.
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.
Live free or die trying!! Amen.
Go Cows!
Mike
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.
Benjamin Franklin, Historical Review of Pennsylvania, 1759
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 & 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.
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!
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
The agency, an unreferenced concept in the constitution plays a greater role in our lives than what most people think.
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.
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!