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Federal Judge Strikes Down Patriot Act’s Section 505

A federal court September 29 struck down the USA Patriot Act’s Section 505, a provision that gives the FBI authority to issue national security letters to obtain transactional records from electronic communications service providers without judicial oversight. Noting that “democracy abhors undue secrecy,” U.S. District Judge Victor Marrero in New York issued the ruling in Doe v. Ashcroft on the grounds that the secret administrative subpoenas violated free-speech rights under the First Amendment as well as the right to be free from unreasonable searches under the Fourth Amendment.

The suit was filed by the American Civil Liberties Union on behalf of an Internet service provider that had received one of the letters. “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 employers.”

“What it says is that the gag order is troubling,” Emily Sheketoff, director of the American Library Association’s Washington Office, told American Libraries. In the long term, the “decision may have an impact on pending litigation challenging the gag order in Section 215, which is virtually identical to the gag order struck down by the court,” the Washington Office wrote in a September 30 statement.

ALA President Carol Brey-Casiano said, “This decision is a milestone in our efforts to restore historical protections of library reading records. We must ensure a balance between national security interests and individual rights if libraries are to remain a cornerstone of democracy and a place where Americans are able to read, research, and think freely.”

There may be no immediate effects from the ruling, however, because Marrero stayed enforcement for 90 days to allow the government time to appeal—an action that appeared likely, according to a September 30 Associated Press report. “We believe the act to be completely consistent with the United States Constitution,” said Attorney General John Ashcroft.

Posted October 1, 2004.