A federal judge today struck down parts of the new U.S.A. Patriot Act that authorized the Federal Bureau of Investigation to acquire corporate records using informal secret demands called national security letters.
The law allowed the F.B.I. to force communications companies, including telephone and Internet providers, to turn over their customers’ records without court authorization and permanently to forbid the companies from discussing what they had done. Under the law, enacted last year, the ability of the courts to review challenges to the ban on disclosures was quite limited.
The judge, Victor Marrero of the Federal District Court in Manhattan, ruled that the law violated the First Amendment and the separation of powers guaranteed by the Constitution.
Judge Marrero wrote that he feared the law could be the first step in a series of intrusions into the role of the judiciary that would be “the legislative equivalent of breaking and entering, with an ominous free pass to the hijacking of constitutional values.”
According to a report from the Justice Department’s inspector general in March, the F.B.I. issued about 143,000 requests through national security letters from 2003 to 2005. The report found that the bureau had often used the letters improperly and sometimes illegally.
Yesterday’s decision was a sequel to ones from Judge Marrero in 2004 and a federal judge in Connecticut in 2005, both of which enjoined an earlier version of the law. Congress responded last year by amending the law when it reauthorized the U.S.A. Patriot Act.
The earlier version of the law prohibited all recipients of the letters from disclosing them. The amended law changed the ban slightly, now requiring the F.B.I. to certify in each case that disclosures might harm national security, criminal investigations, diplomacy or people’s safety.
The law authorized courts to review those assertions under an extremely deferential standard. In some cases, for instance, judges were required to treat F.B.I. statements “as conclusive unless the court finds that the certification was made in bad faith.”
In yesterday’s decision, Judge Marrero said the amendment did not go far enough in addressing the flaws identified in the earlier decisions and created additional constitutional problems.
Recipients of the letters, he wrote, remain “effectively barred from engaging in any discussion regarding their experiences and opinions related to the government’s use” of the letters. Indeed, the very identity of the Internet service provider that brought the case decided yesterday remains secret.
Judge Marrero said that the F.B.I. may be entitled to prohibit disclosures for a limited time but afterward “must bear the burden of going to court to suppress the speech.” Putting that burden on recipients of the letters, he said, violates the First Amendment.
Judge Marrero used harsher language and evocative historical analogies in criticizing the aspect of the new law that imposed restrictions on the courts’ ability to review the F.B.I.’s determinations.
“When the judiciary lowers its guard on the Constitution, it opens the door to far-reaching invasions of privacy,” Judge Marrero wrote, pointing to discredited Supreme Court cases endorsing the internment of Japanese-Americans during the Second World War and racially segregated railroad cars in the 19th century.
“The only thing left of the judiciary’s function for those Americans in that experience,” he wrote, “was a symbolic act: to sing a requiem and lower the flag on the Bill of Rights.”
Lawyers for the American Civil Liberties Union, which represented the Internet company, said Judge Marrero had confirmed a bedrock principle.
“A statute that allows the F.B.I. to silence people without meaningful judicial oversight is unconstitutional,” said Jameel Jaffer, an A.C.L.U. lawyer.
Judge Marrero delayed enforcing the decision pending an appeal by the government. Rebekah Carmichael, a spokeswoman for the United States attorney’s office in Manhattan, said the government has not decided whether it will file one.
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