Battle over PATRIOT Act appeal brews as critical testimony is gagged

From ArsTechnica

The government has appealed a September federal court ruling that struck down the National Security Letter (NSL) provision of the PATRIOT Act. The NSL provision, which can be used without probable cause or judicial oversight, gives the FBI the ability to secretly demand access to the private records of libraries, Internet service providers, and other organizations. National Security Letters also impose gag restrictions on recipients, which forbid them from disclosing that they have received the letter.

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In a strongly-worded ruling issued earlier this year in a lawsuit brought by the American Civil Liberties Union on behalf of an anonymous Internet service provider, federal court judge Victor Marrero wrote that the NSL provision of the PATRIOT Act represents an unconstitutional deprivation of First Amendment rights and threatens to undermine the Separation of Powers doctrine by expanding the executive branch”s authority to the detriment of governmental accountability. The government has now appealed Marerro”s ruling and will continue to fight for the preservation of the PATRIOT Act in court.

“If Congress were able not only to enact the substance of legislation, but also to prescribe the precise corresponding rule telling the courts what level of scrutiny to apply in properly gauging the constitutionality of the statute”s application in practice,” wrote Marerro in his ruling, “the barriers against government abuse that the principles of separation and balance of powers were designed to erect could be severely compromised, and may eventually collapse, with consequential diminution of the judiciary”s function, and hence potential dire effects to individual freedoms.”

Critics of the controversial NSL provision argue that it enables law enforcement agents to circumvent due process. This criticism is particularly significant in light of recent revelations of troubling irregularities discovered by the Office of the Inspector General during an investigation of the FBI”s NSL practices. Critics also point out that the NSL gag orders conflict with basic First Amendment rights by censoring affected parties and preventing them from participating in any debate about the implications of the PATRIOT Act.

In a statement issued yesterday by the American Civil Liberties Union, a representative of an ISP voiced concerns about the National Security Letter gag orders and expressed frustration at being unable to testify during recent Congressional inquiry regarding the involvement of telecommunications companies in the NSA wiretap program. As a result of the gag order, the speaker is forced to remain anonymous and cannot disclose specific details regarding the National Security Letters that his company has received.

“Perhaps the most harmful consequence of the gag provisions is that they make it difficult or impossible for people like me—people who have firsthand experience with the NSL statute—to discuss their specific concerns with the public, the press, and Congress. This seems to be counterintuitive to everything I assumed about this country”s commitment to free speech and the value of political discourse,” the ISP representative wrote. “It has been especially frustrating to be operating under a gag order while Congress is considering whether to grant immunity to telecommunication companies that illegally disclosed information to the NSA. It is unfathomable to me that Congress is considering granting immunity to these companies that acted illegally while those who resisted illegal demands are prohibited even from identifying themselves or explaining their actions publicly.”

Advocacy groups like the ACLU hope that the courts will uphold Judge Marrero”s ruling so that National Security Letter provision can be eliminated and the FBI will be forced to adhere to the rule of law as it pursues future investigations.

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