Surveillance Provisions of the USA Patriot Act Ruled Unconstitutional

A US District Court has held that portions of the revised USA Patriot Act (Patriot Act) are unconstitutional. In Doe v Gonzales (Gonzales, 04 Civ 2614), US District Judge Victor Marrero ruled that the provisions of the Patriot Act which deal with the non-disclosure of National Security Letters (NSL) violate First Amendment rights, while the standard of review of these non-disclosure requirements offends the constitutional separation of powers. Judge Marrero commented that these provisions put citizens in danger of "far-reaching invasions of liberty". NSLs are used by the FBI to request information from electronic communication service providers regarding subscribers' telephone and Internet activity. Under the revised Patriot Act, the recipient of a NSL is barred from disclosing the FBI's request for information if the FBI certifies that disclosure "may result" in one of several enumerated harms, for example, a threat to US national security. The Court ruled that this non-disclosure requirement places both a prior restraint and a content-based restriction on speech. As a result, the Court found these restrictions to be unjustified because the revised Patriot Act fails to provide a narrow, objective and definite standard to give guidance to the FBI when non-disclosure is appropriate. NSL recipients may seek an order to set aside a non-disclosure order but, according to the legislation, a court may do so only if it finds that "there is no reason to believe" disclosure "may result" in an enumerated harm. Judge Marrero found this standard to be very troubling. He held that the standard was an attempt by Congress to legislate a standard of review that contradicts or supersedes the judicially determined standard under the First Amendment. Following his ruling, Judge Marrero stayed the enforcement of his order, pending an appeal by the government. He had already employed a similar course of action in a 2004 judgment that dealt with similar issues under the original USA Patriot Act. That decision also resulted in a finding that provisions of the legislation were unconstitutional. Following that outcome, the government amended the USA Patriot Act. It will be interesting to see if the government appeals the most recent decision or whether it elects to further amend the legislation. For the full text of the reasons for judgment, see: http://www.aclu.org/pdfs/safefree/nsldecision.pdf For commentary, visit: http://tinyurl.com/ypmdp8; and http://www.aclu.org/safefree/nationalsecurityletters/31580prs20070906.html Summary by: Michael Migus