Overview of the Section 2709 Patriot Act decision

U.S. PATRIOT Act Decision Rendered in NY September 29, 2004- Finding its lack of judicial review and restraint on speech unconstitutional. Decision is stayed for 90 days for government action

An important provision of the controversial U.S. PATRIOT Act was struck down on September 29, 2004 by a NY Federal District Court judge. The judge voluntarily stayed the decision for 90 days to permit the government to appeal the decision before it goes into effect or solve the constitutional flaws he identified.

U.S.C. 18 §2709 is a section of the PATRIOT Act that permits the FBI to demand certain customer records from an Internet service provider or a telecommunications company that are “relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities.” These demands are made in a special form of administrative subpoena called a “national security letter” (an “NSL”). Once formally issued, the NSL recipients may not disclose anything about the NSL, including that it was ever even issued.

The ACLU, acting in advocacy role and as counsel to an ISP plaintiff, brought an action to declare U.S.C. 18 §2709 unconstitutional under several grounds. These include challenges to the broad subpoena powers under the First, Fourth and Five Amendments to the U.S. Constitution without judicial oversight, as well as challenges of the non-disclosure provision as a prior restraint of speech under the First Amendment.

The decision holds that (1) the restriction on any disclosure about the NSL or its issuance, to anyone, in perpetuity is overbroad and open-ended and, as such, violates the First Amendment of the U.S. Constitution and (2) the NSL recipient’s inability to have the NSL reviewed by a court violates the Fourth Amendment to the U.S. Constitution. Because the court held that the restraint subsection under the statute could not be severed from the remainder of the statutory provisions, the entire §2709 would have to be struck down.

Without this special provision, the FBI would have to obtain a search warrant or court order to access the customer records. That in turn requires that the request be presented to a magistrate or judge before being issued. Unique to the NSL is that no prior review is made by any member of the judiciary and that its recipient cannot seek judicial review of the propriety of the NSL, or its scope before complying (or even after compliance, under the gag provision). NSLs are not unique to the U.S. PATRIOT Act. They are used in several other national security regulatory schemes.

The judge spent several pages discussing the importance of the environment under which the law was first enacted, in response to the terrorist attacks of September 11th. decision discusses the need to constantly balance governmental efficiencies against fundamental liberties. While recognizing that the balance is rarely easy, the court held that the balance always is stacked in favor of fundamental liberties at the cost of efficiencies. Mindful of the crisis atmosphere and the real risks of terrorism post- September 11th, the decision quotes from previous decisions noting that the greatest risk to fundamental liberties come during times of great crisis. Courts during these times must use enhanced vigilance not to compromise these liberties in the name of expediency.

Solutions could be proposed allowing for a sealed and private judicial proceeding perhaps, should the NSL recipient seek judicial review. There may be other ways to save the intent of the provision and address the needs of our law enforcement agencies in the fight against terrorism. But all would require legislative action.