Court of Appeals upholds unconstitutionality of Patriot Act’s National Security Letter provision

A federal appeals court ruled Wednesday on two challenges to the National Security Letter provision of the USA Patriot Act filed by the American Civil Liberties Uniion. Two different lower courts found the provision to be unconstitutional, and the ACLU argued that recent amendments to the law have made it even less democratic.

Using the NSL provision of the USA Patriot Act, the FBI can demand a range of personal records–email messages, visited websites, library records–without seeking court approval. In addition, the law puts an automatic gag on anyone whose records are gathered by the FBI.

One of the cases brought to the Second Circuit Court of Appeals is from New York, and concerns an anonymous Internet Service Provider who challenged the NSL provision after the FBI demanded records. The other case was from Connecticut, where librarians challenged the provision for not permitting them to disclose their identities.

In 2004, Judge Victor Marrero struck down the NSL statute, and the Court of Appeals upheld his decision. Wrote Judge Richard Cardamone:

A ban on speech and a shroud of secrecy in perpetuity are antithetical to democratic concepts and do not fit comfortably with the fundamental rights guaranteed American citizens…. Unending secrecy of actions taken by government officials may also serve as a cover for possible official misconduct and/or incompetence.

Judge Cardamone added that national security concerns “should be leavened with common sense so as not forever to trump the rights of the citizenry under the Constitution.”

The court also lifted the gag that was put on the Connecticut librarians.


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