Court curbs Justice's probes of ISPs

A federal district court judge today struck down a provision of the USA Patriot Act that allows the FBI to issue secret administrative subpoenas to Internet service providers and others without judicial review.

Judge Victor Marrero of the U.S. District Court for the Southern District of New York ruled in the case of John Doe et al v. John Ashcroft et al that the government does not have the authority to cloak the national security letters it issues to seek electronic information in perpetual secrecy without judicial review.

Justice Department spokesman Mark Corallo said, "We are reviewing the ruling." The American Civil Liberties Union, which represented the anonymous Doe, cited the decision as 'a stunning victory against John Ashcroft's Justice Department.'

Marrero stayed the execution of his order barring the FBI from issuing national security letters for 90 days or until the government appeals.

Today's decision could influence how law enforcement authorities investigate terrorism and crime figures communicating via the Internet.

ACLU attorney Ann Mason said the organization's attorneys originally filed their case under seal because the Patriot Act forbids people who receive national security letters from revealing that fact to anyone, including an attorney. Marrero's 128-page decision revealed that Doe is an ISP, but did not reveal Doe's name, which is still under seal.

Marerro wrote that 'democracy abhors secrecy,' and cited the 1974 amendments to the Freedom of Information Act that Congress adopted in reaction to the cover-up of the Watergate burglary. He condemned a 'categorical and uncritical extension of non-disclosure [that] may become the cover for spurious ends that government may then deem too inconvenient, inexpedient, merely embarrassing, or even illicit to ever expose to the light of day.'

The court barred the Justice Department from issuing national security letters and from enforcing the perpetual secrecy provisions of the administrative subpoena law under the Fourth Amendment to the Constitution, which forbids unreasonable searches and seizures.

'We still cannot disclose the name of our client,' Mason said. 'But he is very excited about the judge's ruling.'

Congress now is considering amendments to the Patriot Act that could expand Justice's authority. The ACLU said today's decision 'should serve as a wake-up call to members of Congress' that the courts may strike down such expansions of the government's powers.

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