Patriot Act has setback in court

He also said that he was concerned that few phone companies and Internet providers had challenged the secrecy orders in court, and that barriers the government had erected were such that it was not worth the time or expense to sue. He said only two suits had been filed since the law was enacted two decades ago. The FBI issued more than 140,000 national security letters from 2003 to 2005, according to the opinion.

Marrero said the letters pose "profound concerns to our society," enabling the government to "unmask the identity of Internet users engaged in anonymous speech" or obtain itemized lists of individual e-mail accounts.

The law that Congress wrote "grants broad discretion to the FBI to completely restrict constitutionally protected speech on the basis of its content, and it places the burden of challenging this restriction in court solely on the [national security letter] recipient -- a party that in the overwhelming majority of cases, lacks any real incentive to do so," he said.

"It is the government that must bear the burden of going to court to suppress the speech and that must bear the burden of proof once in court," he added.

In July, Democratic members of Congress introduced legislation that would remove the gag order provision that the court found unconstitutional.

"Today's decision is a clear signal that Congress must enact changes to the overbroad and unconstitutional NSL authority," said Rep. Jerrold Nadler (D-N.Y.), lead sponsor of the legislation.

rick.schmitt@latimes.com

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Back story

The USA Patriot Act was passed by Congress and signed into law by President Bush in October 2001, in the wake of the Sept. 11 terrorist attacks. It gave the federal government broad powers to prosecute terrorists, control immigration and monitor communications to prevent future attacks.

Civil libertarians and others said it threatened to violate Americans' constitutional rights. One court challenge, brought by the American Civil Liberties Union, objected to the government's use of national security letters, which permit investigators to bypass the courts and order Internet providers and phone companies to turn over records without telling their customers. The letters have been in use since 1986, but the Patriot Act made them easier to issue.

A federal judge in 2004 ruled in favor of the ACLU's challenge, saying that part of the Patriot Act was unconstitutional. Congress amended the law in 2006 to clarify how the letters should be used to avoid conflict with free-speech rights.

On Thursday, the same federal judge in New York ruled that the revised Patriot Act was also unconstitutional, in that the process for issuing national security letters still had 1st Amendment problems and, in bypassing the courts, it violated the separation-of-powers doctrine. The judge barred the use of the letters but stayed his order for 90 days to allow the Justice Department time to appeal.

Source: Los Angeles Times