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Federal Judge Rejects Parts of USA Patriot Act

By: John Scanlan, Attorney at Law

The F.B.I. can demand telephone and internet data on anyone they like, order a electronic communication company to keep it secret, and there’s nothing you can do about it. U.S. District Court Judge Victor Merrero doesn’t like it and has twice overturned parts of the USA Patriot Act to prevent it.

In 2004, Judge Merrero ruled that the F.B.I’s “national security letters” (NSLs) violated the U.S. Constitution. See Doe v. Ashcroft, 334 F.Supp.2d.471 (Decided in the U.S. Dist. Court for Southern Dist. of New York, 2004). The U.S. Government appealed his ruling. In 2005, the U.S. Congress tried to address Judge Merrero’s concerns by updating the Patriot Act (see the USA Patriot Act Improvement and Reauthorization Act). Following the passage of the Reauthorization Act, the Court of Appeals sent the case backto Judge Merrero. Now the Judge has ruled that the updated Patriot Act still violates the Constitution. See Doe v. Gonzales, Case No. 04Civ.2614 (Southern Dist. of New York, Sept 2007).

Judge Merrero ruled that the NSLs violate the U.S. Constitution’s protection of free speech. Under the Reauthorization Act, the F.B.I. can forbid anyone who receives an NSL from ever telling anybody about it. Forbidding speech beforehand is prohibited by the First Amendment’s free speech clause. Judge Merrero ruled that the F.B.I’s prohibition against ever speaking about an NSL is an unconstitutional “prior restraint” on speech.

Although the Restoration Act allows anyone served with an NSL to ask a court to lift the F.B.I’s gag order, the Judge ruled that the NSL provisions violate the Constitution’s separation of powers clause. Because speech is protected by the U.S. Constitution, congress is not allowed to tell the courts what standards apply when deciding a free speech case. The U.S. Supreme Court determined, long ago, that the Government must have a compelling interest in forbidding speech and that the Government’s interest cannot be met in any less restrictive manner. Here, the Patriot Act requires a court to defer to the Government any time the F.B.I. says that revealing the existence of an NSL could “endanger national security”. The Judge ruled that Congress had no power to lessen the U.S. Supreme Court’s standard for free speech cases.

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