[Infowarrior] - Battle over PATRIOT Act appeal brews

[Richard Forno]

Battle over PATRIOT Act appeal brews as critical testimony is gagged

By Ryan Paul | Published: November 06, 2007 - 10:43AM CT

http://arstechnica.com/news.ars/post/20071106-battle-over-patiot-act-appeal-
brews-as-critical-testimony-is-gagged.html

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.

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.