I.S.P. FIRMS GET MORE PROTECTION FROM A U.S. JUDGE

7 September 2007

Patriot Act investigators must obtain court orders before demanding ISP records


Internet Service Providers were given some relief from the draconian provisions of the Patriot Act this week by a federal judge, who struck down parts of the revisions to the Act on Thursday, saying investigators must have a court's approval before they can order Internet providers to turn over records without telling customers.

U.S. District Judge Victor Marrero said the government orders must be subject to meaningful judicial review and that the recently rewritten Patriot Act "offends the fundamental constitutional principles of checks and balances and separation of powers," reports Associated Press.

The American Civil Liberties Union had challenged the law, complaining that it allowed the FBI to demand records without the kind of court order required for other government searches.

The ACLU said it was improper to issue so-called national security letters, or NSLs - investigative tools used by the FBI to compel businesses to turn over customer information - without a judge's order or grand jury subpoena. Examples of such businesses include Internet service providers, telephone companies and public libraries.

Jameel Jaffer, who argued the case for the ACLU, said the revised law had wrongly given the FBI sweeping authority to control speech because the agency was allowed to decide on its own - without court review - whether a company receiving an NSL had to remain silent or whether it could reveal to its customers that it was turning over records.

In 2004, ruling on the initial version of the Patriot Act, the judge said the letters violate the Constitution because they amounted to unreasonable search and seizure. He found that the nondisclosure requirement - under which an Internet service provider, for instance, would not be allowed to tell customers that it was turning over their records to the government - violated free speech.

After he ruled, Congress revised the Patriot Act in 2005, and the 2nd U.S. Circuit Court of Appeals directed that Marrero review the law's constitutionality a second time.

The ACLU complained that Congress' revision of the law didn't go far enough to protect people because the government could still order companies to turn over their records and remain silent about it, if the FBI determined that the case involved national security.

The law as written "reflects an attempt by Congress and the executive to infringe upon the judiciary's designated role under the Constitution," Marrero wrote.

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