The ruling, in a case brought by the American Civil Liberties
Union, also held a broad gag provision of the Act to be an
"unconstitutional prior restraint" on free speech. It is the first
ruling to strike down any of the vast new surveillance powers
authorised by the Patriot Act.
The Patriot Act was drafted in the weeks following the September
11th atrocities in order to boost the fight against terrorism. It
has been widely criticised for undermining civil liberties in the
US, and has been subjected to several legal challenges. One of
these related to the issuing of what are known as "National
Security Letters" (NSLs).
Prior to the Act the FBI was entitled to issue, without court
approval, NSLs that required ISPs and other communication providers
to provide sensitive customer records on suspected terrorists and
spies. Since the Act came into force, however, the FBI has been
able to issue NSLs to obtain, according to ACLU, information about
anyone at all.
The civil liberties group argued that the provision was worded
so broadly that it could effectively be used to obtain the names of
customers of web sites such Amazon.com or Ebay, or a political
organisation's membership list, or even the names of sources that a
journalist has contacted by e-mail.
The Act also required those receiving an NSL to keep quiet about
it.
The American Civil Liberties Union, the New York Civil Liberties
Union and an unidentified ISP brought a challenge to the law
earlier this year, and were forced to file the suit under seal to
avoid penalties for violating the NSL statute's broad gag
provision.
But yesterday Judge Victor Marrero of the Southern District of
New York struck down the NSL provision on the grounds that it
violates free speech rights under the First Amendment as well as
the right to be free from unreasonable searches under the Fourth
Amendment.
"Democracy abhors undue
secrecy," said the Judge, who also struck down the gag provision of
the Act. "Under the mantle of secrecy, the self-preservation that
ordinarily impels our government to censorship and secrecy may
potentially be turned on ourselves as a weapon of
self-destruction."
The ruling, which has been stayed for 90 days in order that the
Justice Department may appeal, bars the government from issuing
National Security Letters or from enforcing the gag provision.
The American Civil Liberties Union and the New York Civil
Liberties Union hailed the ruling as a blow to the current
administration's efforts to expand government surveillance
powers.
"Today's ruling is a wholesale refutation of excessive
government secrecy and unchecked executive power," said ACLU
attorney Jameel Jaffer. "As this decision suggests, certain
provisions of the Patriot Act should never have been enacted in the
first place."
"After labouring under a gag provision for months, it is an
enormous relief to be able to tell the world just how dangerous and
extreme this Patriot Act power is," said ACLU Associate Legal
Director Ann Beeson. "As the judge recognised, the Patriot Act
imposed a 'categorical, perpetual and automatic' gag on every
person who received a National Security Letter, as well as their
lawyers."
According to Reuters, the US Attorney General, John Ashcroft,
confirmed today that the Justice Department is likely to appeal the
ruling.
