A U.S. District Court struck down a key provision of the Patriot Act as unconstitutional Thursday, marking the second time that a provision which allows anti-terrorism investigators to write their own subpoenas for phone and internet records and require the recipients to never speak of them violated the First Amendment.
The ruling (.pdf) strikes yet another blow at the FBI’s use of National Security Letters, which were used to issue 143,074 requests for phone and internet records from 2003 to 2005, and as a recent Inspector General report showed, the widespread use led to abuses and sloppiness. Early this year, a damning report by the Justice Department’s Inspector General found that the FBI used NSLs in violation of applicable NSL statutes, Attorney General guidelines and internal FBI policies. The FBI, along with the Inspector General, are now criminally investigating an office that sent more than 700 emergency letters, with false statements in them, to phone companies.
The ACLU sued on behalf of an anonymous internet service provider, which was served an NSL about one of the websites it hosted. The ISP contested the order, which the FBI subsequently dropped, but the ISP remains unable to even acknowledge that it got a request, and the company’s president said he’s been forced to lie to his friends and girlfriend about it.
Judge Victor Marrero of the Southern District of New York ruled that the gag order and the strict rules about how to contest them amounted to prior restraint on speech and allowed the FBI to pick and choose which persons would be gagged, based on whether the feds believed the target might speak critically of the government. Judge Marrero found, in a 106 page opinion, that the gag order provisions couldn’t be struck down without affecting the rest of the statute so he found that the entire NSL provision was unconstitutional. He also stuck down a provision that prescribed the standards courts should use in judging the FBI’s arguments for keeping gag orders. Marrero wrote that Congress had overstepped its bounds in setting out those standards.
The judge also made it clear that the scope of the FBI’s powers, which were not challenged by the ACLU, concerned the court:
But as powerful and valuable it may be as a means of surveillance and as crucial the purpose it serves, the NSL nevertheless poses profound concerns to our society, not the least of which, as reported by the OIG, is the potential for abuse its employment. Through the use of NSLs, the government can unmask the identity of internet users engaged in anonymous speech in online discussions. It can obtain an itemized list of all the emails sent and received by the target of the NSL, and it can then seek information on individuals communicating with that person. It may be even be able to discover the websites an individual has visited and queries submitted to search engines.
This is the second time the NSL statute has been struck down in this case. After the last decision, the Administration loosened the gag order provision, which in the original Patriot Act, could not be contested and lasted in perpetuity. In the Patriot Act Re-Authorization, the FBI had the option to add gag orders to NSLs. and recipients could choose to fight them in court once a year. But the law established rules saying that courts had to give great deference to the FBI’s national security arguments.
Judge Marrero decided those changes did not go far enough:
In granting the FBI authority to certify that an NSL recipient cannot disclose to any person information about receipt of the NSL, and in including this prescription in the actual NSL letter issued, the amended [statute] “authorizes suppression of speech in advance of its expression.”
The order is being stayed for 90 days to give the government time to appeal the order or get Congress to rewrite the gag rules yet again. CondéNet, Inc.