Federal Judge Strikes Down Patriot Act Provision

On Thursday, September 6, a federal judge struck down parts of the revised USA Patriot Act relating to the FBI's power to use National Security Letters (NSLs) to obtain customer records. U.S. District Judge Victor Marrero declared the Patriot Act provision to be unconstitutional because it allows the FBI to issue gag orders without adequate judicial review.

The American Civil Liberties Union, which brought the case, contended that a recent revision of the Patriot Act that authorizes businesses that receive NSLs to challenge the accompanying gag order does not go far enough in giving the courts the power to lift the gags. The ACLU challenge was supported by an amicus brief filed by the American Booksellers Foundation for Free Expression (ABFFE), the American Library Association, and other organizations.

Judge Marrero agreed and struck down the entire NSL provision of the Patriot Act. The limitation on the power of the courts to lift the gags ''offends the fundamental constitutional principles of checks and balances and separation of powers,'' he said. Marrero stayed his order for 90 days to give the government time to appeal.

"Judge Marrero's decision is an important step toward addressing the threat that the Patriot Act poses to reader privacy," said ABFFE President Chris Finan. "We are particularly grateful to Marrero for bravely striking down the NSL provision twice."

In September 2004, Judge Marrero struck down the NSL provision of the Patriot Act authorizing the government to issue NSLs for "transactional records" to ISPs and other electronic communication providers, including libraries and bookstores that offer the public access to the Internet.

After the Patriot Act reauthorization bill was signed into law in March 2006, the U.S. Court of Appeals for the Second Circuit remanded the case back to Marrero for further consideration. The new legislation contained a number of changes, including the right to challenge NSLs and Section 215 orders in court and a procedure by which a recipient can request that a gag order be lifted.

In September 2006, ABFFE, ALA, and other groups joined in filing an amicus brief in federal district court in New York to support the case brought by the ACLU.