Federal court cancels Patriot Act's wiretap, gag orders

A federal district court today struck down the Patriot Act's provisions that allow the Justice Department and the FBI to eavesdrop on telecommunications and Internet traffic without obtaining court approval, and to impose perpetual secrecy about the very existence of National Security Letter wiretaps.

The U.S. District Court for the Southern District of New York issued a decision in John Doe [and others] v. Alberto Gonzales [and others] that effectively canceled the power of Justice and the FBI to issue NSLs and to impose gag orders that prevent recipients of the wiretap demands from revealing the orders' existence.

The decision in Doe v. Gonzalez severely crimps the broad telecommunications monitoring powers that Congress attempted to give to Justice in late 2001 in a bid to prevent terrorist attacks. The decision could have consequences for law enforcement and intelligence monitoring and processing of various kinds of telecommunications data streams, signaling information and content, which are subject to extensive data mining analysis.

The NSL gag orders prevent the recipients of the orders from disclosing the wiretap orders even to their closest family members.

Judge Victor Marrero stayed the enforcement of the ruling for 90 days to allow the government time to appeal the decision or to maintain the secret status of any information covered by the decision.

Marrero ruled that Doe, the sobriquet of an Internet Service Provider that had received an NSL, would not be bound by the gag order provisions of the Patriot Act. During the lengthy process of the case, Justice and the FBI had dropped their original demands for the Internet records they originally sought from Doe. Doe has been forced to use a pseudonym throughout the case to avoid potential incarceration as provided by the Patriot Act for persons who divulge the fact that they have received NSLs.

Marrero went farther and ruled that Justice and the FBI 'are hereby enjoined from issuing national security letters under [the Patriot Act].'

The Patriot Act created the NSL process shortly after the late 1991 terrorist attacks in New York and Washington as a special tool for federal law enforcement agencies to use against jihadist and other irregular-warfare groups.

One of the most remarkable features of the NSLs is that the FBI was authorized to issue them without any oversight by a federal judge at any stage of the process.

Marrero's decision referred to the Constitution's requirement that all warrants receive a judge's approval, stating, 'In light of the seriousness of the potential intrusion into the individual's personal affairs and the significant possibility of a chilling effect on speech and association ' particularly of expression that is critical of the government or its policies ' a compelling need exists to ensure that the use of NSLs is subject to the safeguards of public accountability, checks and balances and separation of powers that our Constitution prescribes.'

'We are reviewing the ruling and considering our options,' Justice Department spokesman Dean Boyd said this afternoon.

Doe has received legal assistance from the American Civil Liberties Union and the ACLU Foundation during the case.

'As the court recognized, there must be real, meaningful judicial checks on the exercise of executive power,' said Melissa Goodman, an ACLU staff attorney on this case. 'Without oversight, there is nothing to stop the government from engaging in broad fishing expeditions or targeting people for the wrong reasons, and then gagging Americans from ever speaking out against potential abuses of this intrusive surveillance power.'

The civil-liberties organization stated that the gag order provision of the NSL authority has imposed 'a severe hardship on NSL recipients, who not only have been forced to keep this major event secret, but who have been prevented from meaningfully participating in public discussions about NSLs. The court today held that because the gag provisions cannot be separated from the entire amended statute, the court was compelled to strike down the entire statute.'

'As this decision recognizes, courts have a constitutionally mandated role to play when national-security policies infringe on First Amendment rights. A statute that allows the FBI to silence people without meaningful judicial oversight is unconstitutional,' said Jameel Jaffer, director at the ACLU's National Security Project.

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