LAWFUEL – The Legal Newswire – A provision of the Patriot Act that requires people who are formally contacted by the FBI for information to keep it a secret is unconstitutional, a federal judge ruled on Thursday.
U.S. District Judge Victor Marrero sided with the American Civil Liberties Union, which brought the lawsuit and argued that an FBI letter requesting information — called a National Security Letter — is effectively a gag order but without the authorization of a judge.
The FBI tells people who receive the letters to keep them secret, but recipients can challenge the secrecy order in court under a 2006 congressional amendment to the NSL law.
The law says judges must defer to the FBI’s view that secrecy is necessary, undermining the judiciary’s check on the power of the executive branch, the ACLU said.
In a written ruling issued on Thursday, Marrero said the gag order violated the First Amendment guarantee of free speech and was unconstitutional.
Marrero based his ruling on the seriousness of the potential intrusion on privacy and on “the significant possibility of a chilling effect on speech and association — particularly of expression that is critical of the government or its policies.”
Government lawyers had argued that the FBI’s need to ensure that targets remained unaware of an investigation outweighed the free speech rights of NSL recipients.
The ACLU brought the lawsuit on behalf of an unidentified Internet access company that received an NSL.
The company filed suit in April 2004. In September 2004 Marrero found the NSL gag violated free speech rights and struck it down as unconstitutional.