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NEW YORK - A federal judge struck down parts of the revised USA
Patriot 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."
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.
Yusill Scribner, a spokeswoman for the U.S. attorney's office, said
prosecutors had no immediate comment.
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 was 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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