What An ACLU Suit Challenging An Important Section of the USA Patriot Act Tells Us About Surveillance and Secrecy

By ELAINE CASSEL
Wednesday, Jun. 09, 2004

In April of this year, the American Civil Liberties Union (ACLU) and a "John Doe" Internet Service Provider (ISP) sued Attorney General John Ashcroft and FBI Director Robert Mueller. The suit was brought in the U.S. District Court for the Southern District of New York. (The case is ACLU v. Ashcroft et al..)

The plaintiffs challenge a portion of Section 215 of the notoriously controversial USA Patriot Act. The provision allows the FBI to access your personal financial, medical and business records, along with emails and logs of computer use.

In particular, in this suit, the plaintiffs challenge the provision insofar as it grants the government power to obtain subscriber information, billing records, and "electronic communication transactional records" from electronic communications providers. ("Electronic communication providers" are defined to encompass anyone who provides services for the receipt and transmission of electronic or wire communications.)

The Progress of The Case: Initially, Everything Was Under Seal

The ACLU filed the complaint under seal, for fear that doing otherwise itself would be a Patriot Act violation. And indeed, Judge Victor Marrero subsequently ruled that not only the complaint, but also everything in the case must be kept under seal.

In addition, the parties and their attorneys were under a blanket "gag" order, and warned not to discuss anything about the case. ACLU Associate Legal Director Ann Beeson noted at the time that as a result, ironically,"President Bush can talk about extending the life of the Patriot Act, but the ACLU is still gagged from discussing details of our challenge to it."

After three weeks of legal wrangling, Judge Marrero allowed the plaintiffs to post some redacted documents on the ACLU website, and to discuss, only generally, the legal aspects of the case.

Shedding Light on National Security Letters

Here is what we have learned so far from those documents that have been made public, and discussions that have taken place:

According to an internal FBI memo filed in the case, National Security Letters (NSLs) are "powerful investigative tools, in that they compel the production of significant amounts of information." Several people and departments in the FBI are authorized to issue NSLs.

The issue of the NSL must only allege that the information being sought is related to ongoing "terrorism" investigations. It does not require any probable cause or individualized suspicion about persons or their activities. It need not show that the person is involved in terrorism in any way. he recipient of the NSL must comply without even contacting an attorney or corporate counsel.

(Prior to the Patriot Act, such information could only be gotten pursuant to an NSL letter when the purpose was to engage in counterintelligence measures against non-citizens who were associated with a "foreign power.")

Recipients of NSLs are under a blanket gag order never to talk about receiving the NSLs and, of course, they must never disclose to clients or patients that their email, medical records, or retail records have been handed over to the FBI. This gag order is not time-limited--supposedly it continues in perpetuity.

The law places no restrictions on how the government uses the information and records obtained. In theory, the NSL must seek information in the context of fighting terrorism. But once the information is procured, it can be used for any purpose, including prosecution for other crimes, for data-mining (for a description of what "data mining" is, see Anita Ramasastry's earlier article for this site), for creating profiles of "suspicious" persons, and more.

There are no limits on how long the government can keep the information.

The John Doe ISP Provider's Affidavit: Why He Decided to Sue

Last week, Judge Marrero allowed the release of a heavily-redacted summary judgment affidavit filed by the president of the John Doe plaintiff ISP. The company provides web consulting, and email and Internet access to individuals and political associations that "engage in controversial political speech."

The ISP's president is troubled by the law's requirement that, upon receipt of an NSL, he must give the FBI client usage logs, passwords, names and address.

He is concerned because some of his clients use pseudonyms or post viewpoints anonymously on websites hosted by his company. He does not want to invade client privacy or aid the government in violating client civil liberties.

The ISP's president also takes issue, in the affidavit, with both the USA Patriot Act's automatic gag order, and the court's gag order in this case. He says that his inability to talk about the case not only harms his clients, but harms him personally.

In particular, he contends that his free speech rights are not just "chilled," but stopped dead in its tracks. The gag order only allows him to talk about dates and legal generalities; he cannot express his thoughts and feelings about any aspect of the litigation. He cannot commiserate with friends and family or debate the issues.

The Heart of the Case: Constitutional Claims About the USA Patriot Act

In addition to these serious secrecy and First Amendment issues, the case itself raises - and indeed, is based on - other important issues. The complaint

charges that the law at issue is a violation of the First, Fourth, and Fifth Amendments.

A NSL to an ISP can be used to ascertain the identity of an anonymous writer's criticism of administration policies or support for unpopular political causes--such as the rights of Palestinians. (NSL letters can be used to obtain library records, as well.) Although the statute says that "records" of citizens cannot be sought solely because they have engaged in "protected" First Amendment activities, non-citizens can be.

Moreover, the government can say anything about you in an NSL letter to justify asking your ISP for your password. Keep in mind that there is no one can challenge the contents of the NSL, which is a demand letter from an FBI office. No judge or magistrate has approved what amounts to an order from the government.

The target of the NSL will never know of its existence, and the recipient of the letter can tell no one. (This permanent gag order on the recipient is a violation of free speech rights as well.)

Section 215 is a blatant violation of the Fourth Amendment's protection against unreasonable searches and seizures. A hard-fought history of search-and-seizure jurisprudence has protected the right to challenge searches and seizures and to require that there be no searches without probable cause or particularized suspicion that a person is engaging in wrongdoing. Section 215 does away with this expectation entirely--a victim of so-called national security interests.

Fourth Amendment violations go hand in hand with procedures that break faith with the Fifth Amendment, which promises that life and liberty cannot be sacrificed without due process and, further, that we cannot be compelled to incriminate ourselves. These promises likewise have fallen victim to Section 215.

NSLs infringe on due process by denying the ability to defend ourselves against government snooping. There is no opportunity to object to a NSL or to exclude evidence obtained under it--because there is no judicial oversight. There is literally nothing a citizen can do to stop the government before it does its mischief or even to challenge it after the fact.

If and when we are prosecuted--for any crime, recall, not just a crime related to national security--the information and records obtained can be used as evidence against us. There can be no challenge that the evidence was obtained in violation of the Fourth Amendment.

The Provision the ACLU and the John Doe ISP Are Challenging Should Be Repealed

Ashcroft promises, of course, that he is targeting "terrorists," not "innocent" people. But if the USA Patriot Act were really to be used only for this purpose, why isn't that limitation built into the law itself? Without such limitations, abuse is inevitable.

With an NSL, and a simple allegation (unreviewed by any judge) that national security is at issue, the agencies that can invoke the USA Patriot Act provision at issue to profile virtually any citizen's

reading habits, websites visited, and emails sent - by simply, quickly and now, legally getting this information from your ISP. What in the world did Congress have in mind when it granted such unbridled power to the Executive branch?

At the end of 2005, the relevant section of the USA Patriot Act - Section 215 - will face automatic repeal. But that is not soon enough. Even now, Americans should be inundating their senators and representatives with demands to repeal it.

President Bush has vowed to veto any such repeal, while Democratic nominee John Kerry favors the demise of an odious law that not only permits, but invites, serious violations of constitutionally guaranteed civil liberties.


Elaine Cassel practices law in Virginia and the District of Columbia and teaches law and psychology. Her book, The War on Civil Liberties: How Bush and Ashcroft Dismantled the Bill of Rights, will be published in July by Lawrence Hill Books. She maintains a web site devoted to civil liberties issues, Civil Liberties Watch.

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