Federal Judge Rules that Portion of Patriot Act's Surveillance Law Is Unconstitutional

U.S. District Court Judge Victor Marrero says demands that business hand over customer records without a judge's approval is a violation of Constitution


A federal judge Wednesday ruled a portion of the Patriot Act is unconstitutional, the first time one of the anti-terrorism law's surveillance provisions has been struck down.

U.S. District Court Judge Victor Marrero said so-called national security letters -- which allow the FBI to demand certain businesses hand over customer records without a judge's approval and without telling anyone -- broadly violated the Constitution by giving federal authorities unchecked powers to obtain private information.

In a 122-page ruling, Marrero said personal security is equally as important as national security.

``Sometimes a right, once extinguished, may be gone for good,'' the Manhattan federal court judge wrote.

The American Civil Liberties Union filed the challenge on behalf of an Internet firm referred to as John Doe. The group hailed the decision Wednesday as a ``landmark.''

``It's a stunning victory against the Ashcroft Justice Department,'' said Anthony Romero, executive director of the ACLU. He said the ruling would reinforce arguments the group made in a separate challenge in Michigan to another surveillance statute of the act.

Justice Department official Mark Corallo said the decision was being reviewed.

National security letters -- a kind of subpoena -- are one of the more controversial provisions of the Patriot Act, which provided law enforcement with sweeping new police and surveillance powers after the Sept. 11 attacks.

The government has been able to seek communications records from companies such as Internet service providers and telephone companies without a judge's permission since 1996. But the Patriot Act expanded those powers.

The subpoena prevented Internet companies from telling customers that the FBI had collected their information.

The companies were required to provide customers' names, addresses and credit-card data, and also details of their Internet use. It is not clear how many of the subpoenas have been issued in the past three years. But a list obtained by the ACLU covering the 14 months after the act was passed was six pages long. All the companies' names had been blacked out.

Critics were deeply troubled by the law's broad gag order, which barred the recipient of a national security letter from telling anyone he or she had received it.

Marrero called the gag order ``uniquely exceptional'' and said it violated the First Amendment. He held the lack of judicial oversight violated the Fourth Amendment.

National security letters are so secretive that the ACLU was forced to keep its lawsuit under wraps at first.

Justice Department lawyers have maintained that nothing in the gag order prevents the recipient of a national security letter from seeking the advice of a lawyer or challenging the letter before a judge if they choose.

But Marrero said most ordinary citizens would be scared into compliance by a letter ``framed in imposing language on FBI letterhead'' accompanied by a stern warning to keep the government's demand secret.

``Objectively viewed, it is improbable that an FBI summons . . . phrased in tones sounding virtually as biblical commandment, would not be perceived with some apprehension by an ordinary person and therefore elicit passive obedience,'' Marrero wrote.

Marrero's ruling will not take effect immediately, allowing the government time to appeal.

The blow to the Patriot Act comes as Congress weighs giving federal agents additional police powers to fight terrorism as part of legislation revamping U.S. intelligence agencies.

It is the second time a federal court has ruled that a part of the Patriot Act violates the Constitution. A federal court judge in Los Angeles held that a part of the law that makes it a crime to provide material support to terrorists in the form of assistance or advice was overly broad. The government is appealing that decision.

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