In ACLU Case, Federal Court Strikes Down Patriot Act Surveillance Power As Unconstitutional

September 29, 2004 12:00 am

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“Censorship And Secrecy May Potentially Be Turned On Ourselves As A Weapon Of Self-Destruction,” Court Says

NEW YORK – Saying that “democracy abhors undue secrecy,” a federal court today struck down an entire Patriot Act provision that gives the government unchecked authority to issue “National Security Letters” to obtain sensitive customer records from Internet Service Providers and other businesses without judicial oversight. The court also found a broad gag provision in the law to be an “unconstitutional prior restraint” on free speech.

“This is a landmark victory against the Ashcroft Justice Department’s misguided attempt to intrude into the lives of innocent Americans in the name of national security,” said ACLU Executive Director Anthony D. Romero. “Even now, some in Congress are trying to pass additional intrusive law enforcement powers. This decision should put a halt to those efforts.”

The American Civil Liberties Union and the New York Civil Liberties Union, which brought a challenge to the law earlier this year, hailed the ruling as a signal blow to the current administration’s efforts to expand government surveillance powers in violation of the Constitution.

“Today’s ruling is a wholesale refutation of excessive government secrecy and unchecked executive power,” said ACLU attorney Jameel Jaffer. “As this decision suggests, certain provisions of the Patriot Act should never have been enacted in the first place.”

The ruling is the first to strike down any of the vast new surveillance powers authorized by the Patriot Act. In a 120-page decision, Judge Victor Marrero of the Southern District of New York struck down Section 505 of the law on the grounds that it violates free speech rights under the First Amendment as well as the right to be free from unreasonable searches under the Fourth Amendment.

Since filing the case, the ACLU has labored under a broad gag order under which the government sought at every turn to censor even the most innocuous, non-sensitive information about the case. (The ACLU created a special web page to display the types of information it was forced to ask the court to disclose publicly, online at

The ACLU originally filed the lawsuit under seal to avoid penalties for violating the NSL statute’s broad gag provision. Similar gag provisions are attached to other controversial provisions of the Patriot Act, including Section 215, which the ACLU has challenged in another lawsuit. (For more information, go to

“After laboring under a gag provision for months, it is an enormous relief to be able to tell the world just how dangerous and extreme this Patriot Act power is,” said ACLU Associate Legal Director Ann Beeson. “As the judge recognized, the Patriot Act imposed a ‘categorical, perpetual and automatic’ gag on every person who received a National Security Letter, as well as their lawyers.”

The court explicitly rejected the government’s increasing move toward secret and coercive investigatory tactics in the post-9/11 environment. In striking down the gag provision, the court said: “Under the mantle of secrecy, the self-preservation that ordinarily impels our government to censorship and secrecy may potentially be turned on ourselves as a weapon of self-destruction.”

“This is an important victory and significant step in the efforts to dismantle the harmful aspects of the Patriot Act,” said Arthur Eisenberg, Legal Director of the New York Civil Liberties Union, which joined the ACLU in bringing the challenge.

The ACLU noted that the Patriot Act provision was worded so broadly that it could effectively be used to obtain the names of customers of websites such or Ebay, or a political organization’s membership list, or even the names of sources that a journalist has contacted by e-mail.

The decision to strike down a key portion of the Patriot Act comes as Republican leadership in the House is trying to expand the Patriot Act. The ACLU said that Members of Congress should take the judge’s concerns to heart as they consider the various proposals to expand law enforcement powers. House Republicans leaders, for example, included several Patriot Act-like powers in their intelligence reform bill that is currently being debated. And in the Senate, many expect law enforcement amendments to be offered to its pending bipartisan intelligence bill.

Judge Marrero’s decision enjoins the government from issuing National Security Letters or from enforcing the gag provision. The judge stayed his ruling for 90 days in order to afford the government an opportunity to raise objections in the district court or the Second Circuit Court of Appeal. Today’s case is Doe and ACLU v. Ashcroft et al., No. 04-CIV-2614. Attorneys in the lawsuit are Beeson and Jaffer of the ACLU and Eisenberg of the NYCLU. The court’s ruling is online at /node/24814.

An ACLU web feature about today’s case is online at

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