Doe v Ashcroft: Information Seizure Under the USA Patriot Act Struck Down

On September 29, a Judge in the Southern District of New York struck down section 505 of the USA Patriot Act which authorized the issue of special administrative subpoenas for records – including information stored electronically – held by organizations, including ISPs, banks, public libraries, and others. The subpoenas (also known as National Security Letters), said the Judge, were not subject to sufficient judicial oversight and recipients were even prohibited from revealing that they had been served with a National Security Letter. Noting that "democracy abhors undue secrecy," District Judge Victor Marrero issued the ruling in Doe v Ashcroft on the grounds that the secret subpoenas violated free-speech rights under the First Amendment of the US Constitution as well as the right to be free from unreasonable searches under the Fourth Amendment. However, the court delayed enforcement of the judgment pending an expected appeal by the government. Canadian law enforcement and intelligence authorities have similar powers under the Criminal Code, which have come under growing scrutiny in the wake of arguments that they are inconsistent with democratic principles in peacetime and may have been subject to abuse. There are currently five people in Canadian prisons who have been incarcerated without charge for up to four years under national security letters. Although the Federal Court of Canada has nominal oversight of the exercise of the powers, the government is not required to disclose the precise nature of the allegations, the court may dispense with normal rules of evidence and it may hear evidence in secret, in the absence of even the accused's counsel. The government recently amended the procedure for issuing a National Security Letter to require the signatures of both the Solicitor-General and the Minister of Public Safety and Emergency Preparedness. For news coverage of the Doe v Ashcroft decision, see: http://www.wired.com/news/politics/0,1283,65136,00.html; http://news.com.com/2100-1028_3-5388764.html; or http://www.nytimes.com/2004/09/30/national/30patriot.html. For the reasons for judgment in Doe v Ashcroft, visit: http://www.nysd.uscourts.gov/rulings/04CV2614_Opinion_092904.pdf. For the Canadian Bar Association's editorial in The Globe and Mail and letter to Minister of Public Safety and Emergency Preparedness, see: http://www.zerra.net/freemohamed/content.php?article.105. Summary by: Jason Young