As an attorney I think it is important to get many individual’s accounts of legal issues that affect us in our daily lives. In my class I consistently urge my students to express their opinions. Now, I have added another forum for my students to express and report on some of the legal happenings going on in our world. So, to that end, I will start posting some blawgs written by my students; some anonymously and others with full credit (it’s up to the student). Here is the first in the upcoming series.
Federal Court Strikes Down National Security Letter Provision of Patriot Act (9/6/07)
American Civil Liberties Union (ACLU)
By Jane Doe
On September 6, 2007 a federal court struck down the amended Patriot Act’s National Security Letter (NSL) provision. The provision allowed the FBI to issue NSLs to demand private information regarding people within the United States without court approval. It also barred NSL recipients from discussing NSLs or disclosing that they were in receipt of a NSL. Under the provision the FBI could issue a NSL to an Internet Service Provider to obtain their subscriber, billing, and transactional records, or obtain financial and credit documents, and the library records, of persons in the U.S.
The intent of the amended Patriot Act provision was to allow the FBI to peep into the private lives of people in the U.S. without first having to prove probable cause in the courts. It slaps a gag on anyone who dares to think about calling public attention to the FBI’s abusive actions, and it allows no recourse for the NSL recipients who are forced to become unwilling participants in the FBI’s sleuthing activities. This statute is very dangerous because it is intentionally vague, it is intrusive, and it blocks judicial review where it has no right or authority to do so. The reason there are three separate branches of government with separate powers is to prevent statutes such as this.
The federal court got it right when it ruled that the statute’s gag requirement was unconstitutional, and since courts were prevented from engaging in meaningful judicial review of the gags, the statute is in violation of the First Amendment and the separation of power principles. According to the ACLU, the court held that since the gag provisions cannot be separated from the entire amended statute, the court was compelled to strike down the entire statute.
U.S. District Court Judge Victor Marrero understood that because the statute could lead to serious intrusion into a person’s personal affairs, especially if they are 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.” Judge Marrero even went so far as to compare the detrimental effects of the FBI’s powers under the amended NSL provision to the “tragic ill-effects” of the segregation case Plessy v. Ferguson and the internment case Korematsu v. United States, where citizens lost their essential human rights due to expansive governmental power unchecked by the appropriate judicial rulings.
The federal court and ACLU were correct in showing extreme concern with respect to the amended Patriot Act’s National Security Letter provision. In fact, this provision documents the intent of the Patriot Act as a whole, which is to give the government and policing agencies full access into everyone’s lives. The statute’s name itself is misleading. It implies that one’s interest in retaining privacy is non-patriotic, or that unwarranted governmental intrusion is patriotic. And it is by no mistake that initial reports stated that 30,000 NSLs were issued annually, when the Justice Department revealed that in fact there were 143,000 NSLs issued between 2003 and 2005. National security should never be used as an excuse to trample on a person’s constitutional rights. The judicial branch must be allowed to give judicial review when the legislative and executive branches decide to peer into a person’s private lives.