(REUTERS) Part of the Patriot Act, a central plank of the Bush administration’s war on terror, was ruled unconstitutional by a federal judge Wednesday.
U.S. District Judge Victor Marrero ruled in favor of the American Civil Liberties Union, which challenged the power the FBI has to demand confidential records from companies, like internet service providers, as part of terrorism investigations.
The move strikes down section 505 of the Patriot Act, which gives the FBI power to demand information from companies without a court order and bars recipients of the letters from ever revealing that they received the FBI demand for records. Marrero held that this permanent ban was a violation of free-speech rights.
Marreo prohibited the Department of Justice and the FBI from issuing special administrative subpoenas, also known as national security letters. But he delayed enforcement of his judgment pending an appeal that’s expected to be filed by the government. The Department of Justice said it was reviewing the ruling.
ACLU Executive Director Anthony Romero called the ruling a “stunning victory” and said the timing was especially important since Congress was deliberating on passing additional surveillance and law enforcement powers this week.
Jameel Jaffer, who argued the case in court for the ACLU, said they based their challenge on Fourth Amendment rights, arguing that, under the provision, individuals who received national security letters weren’t provided any opportunity to challenge the letters before a judge.
Jaffer emphasized that the case wasn’t about the kinds of records the FBI could obtain but about what the FBI had to do in order to get the records, such as go before a federal judge to justify its demand for records. The government argued that it was possible to imply in the legislation that recipients of the letters do have an opportunity to challenge them, but the judge rejected that argument.
The FBI first received power to get customer records in 1986 legislation, but its power to obtain confidential data was greatly expanded by the Patriot Act — a controversial law the Bush administration pushed through Congress after the 9/11 attacks to help it battle terrorism.
The ACLU has been arguing since then that section 505 of the legislation was too broad because it could allow the FBI to obtain records from any organization that allowed individuals to communicate over the Internet, not just internet service providers. Jaffer said the FBI could use the provision to obtain a political organization’s membership list, like the ACLU or NAACP, or to obtain the names of a person who communicated anonymously or who communicated with a journalist over the Internet.
Under the provision, the FBI did not have to show a judge a compelling need for the records and it did not have to specify any process that would allow a recipient to fight the demand for confidential information.
The ACLU sued the Department of Justice, arguing that the provision violated the Constitution because it authorizes the FBI to force disclosure of sensitive information without adequate safeguards.
The ACLU filed the lawsuit in part on behalf of a client who received a national security letter from the FBI. But the organization had to file the suit under seal to avoid penalties for violating the gag provision. They were prohibited from talking to anyone about the suit.
“Until today we were forbidden from even disclosing the mere fact that a national security letter was served on our client,” said ACLU Associate Legal Director Ann Beeson. “The government argued that it would jeopardize national security for us to say that we represented a client who had received a national security letter.”
They were able to reveal the existence of their client and the national security letter after the ruling only because the judge mentioned the client in his ruling.
The ruling was the latest blow to the Bush administration’s antiterrorism policies.
In June, the Supreme Court ruled that terror suspects being held in places like Guantanamo Bay can use the U.S. judicial system to challenge their confinement. That ruling was a defeat for the president’s assertion of sweeping powers to hold “enemy combatants” indefinitely after the Sept. 11, 2001, terror attacks.