Judge Strikes Down Section of Patriot Act

By JULIA PRESTON

New York Times

October 1, 2004

A federal judge struck down an important surveillance provision of the antiterrorism legislation known as the USA Patriot Act yesterday, ruling that it broadly violated the Constitution by giving the federal authorities unchecked powers to obtain private information.

The ruling, by Judge Victor Marrero of Federal District Court in Manhattan, was the first to uphold a challenge to the surveillance sections of the act, which was adopted in October 2001 to expand the powers of the federal government in national security investigations.

The ruling invalidated one piece of the law, finding that it violated both free speech guarantees and protection against unreasonable searches. It is thought likely to provide fuel for other court challenges.

The ruling came in a case brought by the American Civil Liberties Union against a kind of subpoena created under the act, known as a national security letter. Such letters could be used in terrorism investigations to require Internet service companies to provide personal information about subscribers and would bar them from disclosing to anyone that they had received a subpoena.

Such a subpoena could be issued without court review, under provisions that seemed to bar the recipient from discussing it with a lawyer.

Judge Marrero vehemently rejected that provision, saying that it was unique in American law in its "all-inclusive sweep" and had "no place in our open society."

He ordered that his ruling would not take effect for 90 days, to give the Bush administration time to appeal.

Anthony Romero, executive director of the A.C.L.U., called the ruling a "stunning victory against John Ashcroft's Justice Department." He said it would reinforce arguments the group had made in a separate challenge in Michigan to another surveillance section of the act.

The ruling does not affect many sections of the act, which is more than 350 pages long, that give the government enhanced powers to control immigration, conduct searches and investigate financial support for terrorism. It comes as Congress is debating additions to the Patriot Act.

Bush administration officials have said the Patriot Act is a foundation of their efforts to prevent terrorist attacks against Americans.

The civil liberties group's suit was brought on behalf of John Doe, an Internet provider company that received a national security letter from the F.B.I., but was barred under its terms from revealing its name. Until the judge revealed the facts of the case in his ruling, the civil liberties group had been reluctant to state publicly that it was representing a company that had received a national security letter.

Such subpoenas would prevent Internet companies from telling customers that the F.B.I. had collected their information.

The companies were required to provide customers' names, addresses, credit card data and details of their Internet use. It is not clear how many of the subpoenas have been issued in the last three years. But a list obtained by the A.C.L.U. covering the 14 months after the act was passed was six pages long, although the companies' names were blacked out.

Judge Marrero said he hoped to strike "the most sensitive judicial balance" between national security and basic freedoms. He was aware, he wrote, that the Sept. 11 attacks had created "an atmospheric pressure, a heavy weight that, foglike, has loomed densely" over the case.

He said the subpoena violated the Fourth Amendment because it did not allow for review by a court. He called it "an ominous writ" that the F.B.I. issued "in tones sounding virtually as a biblical commandment." He said he worried that anyone who received a national security letter, except "the most mettlesome and undaunted" targets, would feel barred from consulting a lawyer.

In January, Judge Audrey B. Collins of Federal District Court in Los Angeles struck down a clause of the act that barred providing material support for terrorist groups, saying it was too vague and broad.

In its case in Michigan, the A.C.L.U. is challenging a section of the act that allows the F.B.I. to obtain a court order to force any organization to turn over tangible evidence. Before the act, investigators seeking to obtain concrete evidence had to convince the court that the organizations or people were spies or terrorists for a foreign government.