Judge: National security letter provision is unconstitutional

Congress recently revised the USA Patriot Act to allow the FBI to use "national security letters" to compel companies - including Internet service providers and telecom companies - to produce customer records -- and forbid them from telling customers or anyone else about it. The law also severely limited the ability of the courts to review challenges to the ban.

A federal judge yesterday struck down those parts of the law, saying they violate the First Amendment and separation of powers, the New York Times reports. Judge Victor Marrero of the federal district court in Manhattan said the law amounted to the first step on a slippery slope that would be “the legislative equivalent of breaking and entering, with an ominous free pass to the hijacking of constitutional values.” In 2004 Marrero, and in 2005 a Connecticut judge, blocked similar provisions of the earlier law. That version barred all recipients of the letters from disclosing them. The amended law changed the ban slightly, requiring the FBI to certify that disclosure might harm national security, criminal investigations, diplomacy or people’s safety.

The law authorized courts to review those assertions, but under extremely deferential standards. In some cases, judges were required to treat F.B.I. statements “as conclusive unless the court finds that the certification was made in bad faith.”

The new law fails to adequately address First Amendment concerns, the judge wrote. Recipients of letters remain “effectively barred from engaging in any discussion regarding their experiences and opinions related to the government’s use” of the letters.

The judge said the FBI must "bear the burden of going to court to suppress the speech." Putting that burden on recipients of the letters, he said, violates the First Amendment.

“When the judiciary lowers its guard on the Constitution, it opens the door to far-reaching invasions of privacy,” Judge Marrero wrote, pointing to discredited Supreme Court decisions endorsing the internment of Japanese-Americans during World War II and racially segregated railroad cars in the 19th century.

"The only thing left of the judiciary’s function for those Americans in that experience," he wrote, "was a symbolic act: to sing a requiem and lower the flag on the Bill of Rights."

The government has not decided whether to appeal.