Patriot Act provision ruled unconstitutional

This Sept. 6 report from Computer World hails a victory for the privacy rights of cyberscenti, but as we have noted, this also concerns us old-school types who go to libraries and read books. (We know, how quaint.)

Judge: Court order needed before ISPs turn over user info without notification
A federal court today ruled that the FBI can’t compel ISPs to turn over user records without notifying those users unless it has a court order or a grand jury subpoena. The U.S. District Court for the Southern District of New York struck down part of the amended Patriot Act’s National Security Letter (NSL) provision, according to the American Civil Liberties Union (ACLU), which had filed a lawsuit challenging the provision.

The law had allowed the FBI to issue NSLs to ISPs demanding that they turn over private information about people within the U.S. without court approval and without telling the affected customers. NSLs can be used to get access to subscriber, billing and other records from ISPs, as well as to obtain other financial and credit documents from other companies — including telephone companies and even libraries.

According to the court, the gag order was unconstitutional because it prevented courts from engaging in meaningful judicial review and violated the principles of separation of powers and free speech. “In light of the seriousness of the potential intrusion into the individual’s personal affairs and the significant possibility of a chilling effect on speech and association — particularly of expression that is critical of the government or its policies — a compelling need exists to ensure that the use of NSLs is subject to the safeguards of public accountability, checks and balances and separation of powers that our Constitution prescribes,” said U.S. District Court Judge Victor Marrero in the decision.

“A statute that allows the FBI to silence people without meaningful judicial oversight is unconstitutional,” Jameel Jaffer, director of the ACLU’s National Security Project, said in a statement. “The court today held that because the gag provisions cannot be separated from the entire amended statute, the court was compelled to strike down the entire statute.”

The U.S. Attorney’s Office for the Southern District of New York could not be reached for comment.

The ACLU originally filed the case, Doe v. Gonzales, in April 2004 on behalf of an anonymous ISP that had received an NSL. Subsequently, the FBI dropped its NSL demand, but the John Doe remained under a gag order. Marrero originally struck the NSL provision of the Patriot Act as unconstitutional in September 2004 because it violated the First Amendment.

The government appealed that ruling, but Congress amended the NSL provision before the court issued a decision. The amended law allowed the FBI to continue to compel companies to turn over records and not talk about it if the FBI felt the case was a matter of national security. The ACLU argued that the law still violated the Constitution.

Then, in May 2006, the appeals court asked the district court to again consider the constitutionality of the amended law, leading to today’s decision.

See our last post on the surveillance state.