Judge Strikes Down Section of Patriot Act Allowing
Secret Subpoenas of Internet Data
By JULIA PRESTON
Published: September 30, 2004
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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
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
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
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