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A law allowing the FBI to compel disclosure of a person’s Internet and phone records from communications companies — and penalizing the companies if they disclose the order to the customer — has been found unconstitutional by a federal judge. Southern District of New York Judge Victor Marrero said Wednesday that issuance of so-called national security letters by the FBI under 18 U.S.C. �2709 violates the Fourth Amendment. He also ruled that the ban on telling targets about the letters is a violation of the First Amendment. The identity of the plaintiff in Doe v. Ashcroft, 04 Civ. 2614, was kept secret and under seal by Marrero after the American Civil Liberties Union sued this summer. John Doe is described in the complaint as an “internet access firm” to whom the FBI sent a national security letter, or NSL. Under the statute, the FBI is empowered to issue the letters upon certifying that the phone or Internet records are “relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities.” The law predates Sept. 11, 2001, but was amended in the post-9/11 USA Patriot Act to make it easier to use. The FBI no longer must find that the information it seeks has a “nexus to a foreign power,” the judge noted. The new language sets forth “a broad standard of relevance to investigations of terrorism or clandestine intelligence activities.” Marrero found that �2709 “violates the Fourth Amendment because, at least as currently applied, it effectively bars or substantially deters any judicial challenge to the propriety of an NSL request. In the Court’s view, ready availability of judicial process to pursue such a challenge is necessary to vindicate important rights guaranteed by the Constitution or by statute.” The permanent ban on disclosure of the demand in �2709(c), “which the Court is unable to sever from the remainder of the statute, operates as an unconstitutional prior restraint on speech in violation of the First Amendment,” he said. “In simplest terms, �2709 (c) fails to pass muster under the exacting First Amendment standards applicable here because it is so broad and open-ended,” he said. “In its all-inclusive sweep, it prohibits the NSL recipient, or its officers, employees, or agents, from revealing the existence of an NSL inquiry the FBI pursued under �2709 in every case, to any person, in perpetuity, with no vehicle for the ban to ever be lifted from the recipient or other persons affected, under any circumstances, either by the FBI itself, or pursuant to the judicial process.” He called the use of national securities letters to get communications records “a unique form of administrative subpoena cloaked in secrecy.” Administrative subpoenas — document requests enforceable in court — may be used by most government agencies but typically have no secrecy provision or a limited one for special cases, the judge said. Marrero enjoined the government from using the statute. But, saying he was “aware that several material issues in this case involve uncharted legal terrain,” he stayed enforcement of his judgment for 90 days pending appeal “or measures by the government otherwise to address the flaws in the structure and implementation” of the law. DEFICIENCIES NOTED The government had argued that �2709 should be read to allow a letter recipient to consult with a lawyer and for the recipient to challenge, or the government to enforce, the letter in court — two safeguards the government said would satisfy the constitutional concerns raised before the court. But Marrero said the government asked for too much when it argued that protections should be implied in the statute, which he said requires listening to the “sounds of silence.” Even if he adopted the government’s reading, Marrero said, he “would still hold that the statute, as currently applied by the FBI, exerts an undue coercive effect on NSL recipients.” “The form language of the NSL served upon Doe, preceded by an FBI phone call, directed him to personally provide the information to the FBI, prohibited him, his officers, agents, or employees from disclosing the existence of the NSL to anyone, and made no mention of the availability of judicial review to quash or otherwise modify the NSL or the secrecy mandated by the letter,” he wrote in a 120-page opinion. “Nor did the FBI inform Doe personally that any such judicial review of the issuance of the NSL or the secrecy attaching to it was available.” Conceivably, he said, the government could cure the first defect in the statute by alerting all NSL recipients “that they are entitled to consult with an attorney and other persons necessary to facilitate compliance, and to move to quash the NSL.” But that could not remedy the second deficiency “that serves as grounds for the statute’s facial invalidation: the categorical, indefinite non-disclosure provision �2709(c), which is not amenable to a ‘fairly possible’ construction that would save it from invalidation,” he said. The judge went on to find that �2709 could be used to violate the privacy rights of subscribers to Internet service providers “if judicial review is not readily available to an ISP that receives an NSL.” “Every court that has addressed the issue has held that individual Internet subscribers have a right to engage in anonymous Internet speech, though anonymity may be trumped in a given case by other concerns,” he said. “No court has adopted the Government’s argument here that anonymous Internet speech or associational activity ceases to be protected because a third-party ISP is in possession of the identifying information.” “The court’s decision reflects the need to impose reasonable constitutional restraints on the government even as it pursues important national security interests,” said Arthur N. Eisenberg, who represented the plaintiff along with Jameel Jaffer and Ann Beeson. “The provision at issue went way over the line and we are gratified for the court’s well-reasoned decision.” The government was represented by Assistant U.S. Attorney Jeffrey S. Oestericher.

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