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Judge Rules Against Patriot Act Provision
1 hour, 45 minutes ago   Top Stories - Reuters

NEW YORK (Reuters) - Part of the Patriot Act, a central plank of the Bush Administration's war on terror, was ruled unconstitutional by a federal judge on Wednesday.

U.S. District Judge Victor Marreo ruled in favor of the American Civil Liberties Union (news - web sites), which challenged the power the FBI (news - web sites) has to demand confidential financial records from companies as part of terrorism investigations.

The ruling was the latest blow to the Bush administration's anti-terrorism policies.

In June, the U.S. Supreme Court (news - web sites) ruled that terror suspects being held in places like Guantanamo Bay can use the American judicial system to challenge their confinement. That ruling was a defeat for the president's assertion of sweeping powers to hold "enemy combatants" indefinitely after the Sept. 11, 2001, attacks.

The ACLU sued the Department of Justice (news - web sites), arguing that part of the Patriot legislation violated the constitution because it authorizes the FBI to force disclosure of sensitive information without adequate safeguards.

The judge agreed, stating that the provision "effectively bars or substantially deters any judicial challenge."

Under the provision, the FBI did not have to show a judge a compelling need for the records and it did not have to specify any process that would allow a recipient to fight the demand for confidential information.

Make sure Dave_A sees this.

"The legislation bars companies and other recipients of these subpoenas from ever revealing that they received the FBI demand for records. Marreo held that this permanent ban was a violation of free speech rights. "

So the FBI gets a court order to see the records, a judge OKs the warrant, and they don't want the FOREIGN SUSPECT to know that he is being investigated. (because they want to catch the terrorists).

And the "judge" now claims that was a violation of free speech rights.

Yeah.

You cannot demand confidential financial records from a private company and put them into a situation where they could become public record as evidence in a criminal trial like that.

It jeopardizes the companies right to compete as their competitors could request the public record to access what was originally trade secret.

Quoted: You cannot demand confidential financial records from a private company and put them into a situation where they could become public record as evidence in a criminal trial like that. It jeopardizes the companies right to compete as their competitors could request the public record to access what was originally trade secret.

The point of the suit is that it is SECRET, not that it will be made public.  They don't like the fact that the company CANNOT tell the world that the FBI is investigating so and so.

Neither the Patriot Act nor this ruling has anything to do with that.

No.. this is not true. Trust me from someone who has been served and appeared in front of a Federal Judge to witness in a case after being subpoenaed with a gag order still in place a la Patriot Act provisions. blah blah blah...

The FBI used to have the right to walk in the door without a warrant via the Patriot Act. They could demand private financial records and use them as they wished. There was NO provision for securing private financial information. They had no restrictions on this information after it was obtained, and because there was no order from a judge to protect the information, it was open game prior to and after a trial as public record.... even if the financial information obtained was say... salary records for a suspect.

A judge can still order these records, but would do so under a sealed order. That is the difference.

So the government is going to forbid you to reveal the secret request for documents, because they want it to be secret, and then they'll make the secret request for documents public.
Hmmm.

Quoted: Make sure Dave_A sees this.

I'm waiting for the USSC version...

I have a feeling this ruling won't hold, as these items aren't the property of the person they relate to, but rather the company that is being subpoenaed...

Kind of like the BS 9th ruling that said people have a 'right' to aid terrorists so long as it is 'non violent' aid...

The issue in this case is not the gag order.

The issue is who and how the government can obtain your financial records.

The judge issuing the order can still create a gag order provision with the subpoena. The FBI can't just walk in off the street and take your records without a court order mandating the treatment of the request and the information.

Under the original provision, a company couldn't even alert their corporate counsel that the records were taken. The admin assistant in the accounting department couldn't even tell their boss that the FBI stopped by while everyone was out to lunch. The FBI had no restriction on the use of that information after the fact, and it could have all been made openly public through several means.

Now it it better controlled through the signature of a judge.

Quoted: The issue in this case is not the gag order.

No.  The issue is the gag order.
YES, the ACLU didn't like "how the government can obtain your financial records", but the Judge decided the case based on the gag order, and that it violated the 1st Amendment.
The fact that the ACLU argued against "how the government can obtain your financial records" has nothing to do with WHAT was found to be unConstitutional.  
The Judge knew that this was the only way.  It's weak.

The issue is who and how the government can obtain your financial records. The judge issuing the order can still create a gag order provision with the subpoena. The FBI can't just walk in off the street and take your records without a court order mandating the treatment of the request and the information. Under the original provision, a company couldn't even alert their corporate counsel that the records were taken. The admin assistant in the accounting department couldn't even tell their boss that the FBI stopped by while everyone was out to lunch. The FBI had no restriction on the use of that information after the fact, and it could have all been made openly public through several means. Now it it better controlled through the signature of a judge.

Read the decision.
It's a First Amendment case.
It's bullshit.

The ACLU sued the Department of Justice (news - web sites), arguing that part of the Patriot legislation violated the constitution because it authorizes the FBI to force disclosure of sensitive information without adequate safeguards. The judge agreed, stating that the provision "effectively bars or substantially deters any judicial challenge." Under the provision, the FBI did not have to show a judge a compelling need for the records and it did not have to specify any process that would allow a recipient to fight the demand for confidential information.

Did we read the same article?

ETA... I did read the decision. YOU DO NOT HAVE THE RIGHT TO DESTROY MY PRIVATE COMPANY VIA YOUR INVESTIGATION INTO ONE OF MY EMPLOYEES!

When it comes to Constitutional freedoms, I'm not too sad to see things that ***MAY*** infringe on them be struck down.

I don't see Patriot Act as necessary for the WoT.

Quoted: The ACLU sued the Department of Justice (news - web sites), arguing that part of the Patriot legislation violated the constitution because it authorizes the FBI to force disclosure of sensitive information without adequate safeguards.

Yes, the ACLU argued this.  But that's not what the decision was based upon.

The judge agreed, stating that the provision "effectively bars or substantially deters any judicial challenge."

"The judge agreed" is a misleading claim by the author of the story.
The judge "held that this permanent ban was a violation of free speech rights".
That's what the ruling was based on. NOT what the ACLU (or you) argued.

Under the provision, the FBI did not have to show a judge a compelling need for the records and it did not have to specify any process that would allow a recipient to fight the demand for confidential information. Did we read the same article? ETA... I did read the decision. YOU DO NOT HAVE THE RIGHT TO DESTROY MY PRIVATE COMPANY VIA YOUR INVESTIGATION INTO ONE OF MY EMPLOYEES!

Don't confuse what the ACLU said with what the judge said.  The story is misleading, and requires a critical eye.
Don't fall for it.

Quoted: When it comes to Constitutional freedoms, I'm not too sad to see things that ***MAY*** infringe on them be struck down. I don't see Patriot Act as necessary for the WoT.

Years ago, the Foreign Intelligence Surveillence Act was passed, to protect the rights of those suspected of being FOREIGN Agents.

That had to be changed.

The wall between the CIA and the FBI?

THAT had to be changed.

You have to have a Constitutional basis to challenge the appeal. The ACLU chose the path of least resistance with the challenge to the 1st.

The judge found that path for them.
This isn't the first time THIS judge has gone aginst the Patriot Act.

If it holds up on appeal, I'd be surprised.

You have argued in favor of this provision. But, as a businessowner, I am unwilling to put my hard work and investment at risk in the market because some field agent is conducting an investigation' with no checks or balances -- and further no provision for me to contest the matter.

No way. This has been one of the various aspects of the PA that I have always considered unconstitutional and a wanton violation of our rights. You don't work for 20-30 years to build a company, only to have it put in jeopardy because some agent waltzes in off the streets armed with nothing more than a copy of the PA legislation and a badge -- demanding all manner of financial disclosure. I have a right to say no if there is nothing there to protect the information that is being disclosed.

At least now I can petition the judge in the matter with a motion to seal the information.

Quoted: "The legislation bars companies and other recipients of these subpoenas from ever revealing that they received the FBI demand for records. Marreo held that this permanent ban was a violation of free speech rights. " So the FBI gets a court order to see the records, a judge OKs the warrant, and they don't want the FOREIGN SUSPECT to know that he is being investigated. (because they want to catch the terrorists). And the "judge" now claims that was a violation of free speech rights. Yeah. Don't know about free speach violation BUT my understanding is even tho they are looking for terriosts  the PA allows these same things to happen to you and me terriost or not, and for me that is an infrigement on my rights and completely unacceptable. Roy

This is indeed the truth.

I am hardly a terrorist (maybe a redneck hellraiser, but no terrorist).

They pulled the shit on me in a case completely unrelated to anything remotely associated with terrorism. I filed a motion with the judge and had the basis to quash the subpoena, but stated that I would cooperate if my information could be held confidential. The judge agreed.

Quoted: Quoted: "The legislation bars companies and other recipients of these subpoenas from ever revealing that they received the FBI demand for records. Marreo held that this permanent ban was a violation of free speech rights. " So the FBI gets a court order to see the records, a judge OKs the warrant, and they don't want the FOREIGN SUSPECT to know that he is being investigated. (because they want to catch the terrorists). And the "judge" now claims that was a violation of free speech rights. Yeah. Don't know about free speach violation BUT my understanding is even tho they are looking for terriosts  the PA allows these same things to happen to you and me terriost or not, and for me that is an infrigement on my rights and completely unacceptable. Roy

Roy, is that "understanding" based on the media, claims made by the ACLU, or your own reading of the Act?

Quoted: Quoted: Make sure Dave_A sees this. I'm waiting for the USSC version... I have a feeling this ruling won't hold, as these items aren't the property of the person they relate to, but rather the company that is being subpoenaed... Kind of like the BS 9th ruling that said people have a 'right' to aid terrorists so long as it is 'non violent' aid...

Agreed..... This will WAY more than likely end up in front of the supreme court.

I'd be shocked if it didn't, actually..... We'll hear more about this, no doubt.


ETA:  That I do have to agree with Ben.... There SHOULD and NEED to be some forms of protection in place to protect a company/individual employer that has NO complicity in the alleged crime being investigated.....  It's just common sense that the government shouldn't be allowed to take your financial info, etc. and haphazardly make it available to any jackass under the auspices of the freedom of information act, etc...   That's treading on dangerous ground really...

And it's not like the involved companies and such were NOT willing to comply with the requests, just that they wanted assurances that their valuable informations were used and safeguarded responsibly during said investigations.......

I hardly think that's too much to be asked for, or even expected.....

Quoted: You have argued in favor of this provision. But, as a businessowner, I am unwilling to put my hard work and investment at risk in the market because some field agent is conducting an investigation' with no checks or balances -- and further no provision for me to contest the matter. No way. This has been one of the various aspects of the PA that I have always considered unconstitutional and a wanton violation of our rights. You don't work for 20-30 years to build a company, only to have it put in jeopardy because some agent waltzes in off the streets armed with nothing more than a copy of the PA legislation and a badge -- demanding all manner of financial disclosure. I have a right to say no if there is nothing there to protect the information that is being disclosed. At least now I can petition the judge in the matter with a motion to seal the information.

Actually, under the PA, the information would be CLASSIFIED, Ben. That's the part that made this yahoo judge strike the provision, the fact that your business data which cointains info about a terror suspect would be CLASSIFIED and never released to the public....

Quoted: Quoted: Quoted: Make sure Dave_A sees this. I'm waiting for the USSC version... I have a feeling this ruling won't hold, as these items aren't the property of the person they relate to, but rather the company that is being subpoenaed... Kind of like the BS 9th ruling that said people have a 'right' to aid terrorists so long as it is 'non violent' aid... Agreed..... This will WAY more than likely end up in front of the supreme court. I'd be shocked if it didn't, actually..... We'll hear more about this, no doubt. ETA:  That I do have to agree with Ben.... There SHOULD and NEED to be some forms of protection in place to protect a company/individual employer that has NO complicity in the alleged crime being investigated.....  It's just common sense that the government shouldn't be allowed to take your financial info, etc. and haphazardly make it available to any jackass under the auspices of the freedom of information act, etc...   That's treading on dangerous ground really... And it's not like the involved companies and such were NOT willing to comply with the requests, just that they wanted assurances that their valuable informations were used and safeguarded responsibly during said investigations....... I hardly think that's too much to be asked for, or even expected.....

The whole PURPOSE of this section is to deal with companies that are totally innocent of any involvement in terror, but posess nformation needed to prosecute a suspect.

The reason for this is simple: YOU, as a person, DO NOT OWN any information related to your dealings with a business or public institution. That information belongs to the entity that collected it.

Because of this, they can't get a search warrant for 'your' bank records, as those records belong to the BANK.

THis provision allows the govt to subpoena those records for use against the customer who's dealings with the company created them, and it is assumed that the business is NOT complicit, they just hapen to be holding evidence needed by the investigation...

      Not the Patriot Act??

http://volokh.com/archives/archive_2004_09_28.shtml#1096522582

[Orin Kerr, September 30, 2004 at 1:36am]

Mainstream Media Ruled Unconstitutional:No, not really. But is it too much to ask that when the mainstream media reports on court decisions that they properly identify the law that is struck down and the Administration that is rebuked? Apparently it is, at least if the Thursday morning papers are any guide.

 As I noted in my post below, a recent decision of the Southern District of New York struck down part of a 1986 law known as the Electronic Communications Privacy Act. How does the press report the decision? No mention of the 1986 law, of course. Instead, the press is reporting that the court struck down a major part of the Patriot Act, in a blow to the Bush Administration's overzealous response to terrorism. As I trace the history of the statute, this is quite inaccurate: the basic law was implemented in 1986, almost 20 years ago. To be fair, the Patriot Act did amend some language in this section; just not in a relevant way. As best I can tell, the court's decision does not rely on or even address anything in the Patriot Act. (See page 14-22 of the Court's opinion for the details of the statute's history.)

 But of course you don't get that from the mainstream press, which likes to report everything related to terorrism as if it were the Patriot Act.

=================================================================

[Orin Kerr, September 30, 2004 at 12:05am]

District Court Invalidates Part of Electronic Communications Privacy Act:District Judge Victor Marrero of the Southern District of New York issued a 122 page opinion in Doe v. Ashcroft yesterday invalidating 18 U.S.C. 2709, the "national security letter" provision of the Electronic Communications Privacy Act, on Fourth and First Amendment grounds. This is big news: it might require heavily increased reliance on the controversial Section 215 powers of the Patriot Act, and creates considerable constitutional uncertainty as Congress heads into debates on revisiting the Patriot Act in 2005.

This puts it to rest...

Patriot Act Misinformation

The American Civil Liberties Union has been spinning its victory in a federal court in New York this week as a blow against the USA Patriot Act. One typical headline: "Federal Judge Calls Patriot Act Secret Searches Unconstitutional." An ACLU press release hails the decision as "a landmark victory against the Ashcroft Justice Department."

Well, no. If reporters had bothered to read Judge Victor Marrero's decision, they would have learned that the law he actually struck down was a provision of the Electronic Communications Privacy Act of 1986. Section 2790 authorizes the FBI to issue "National Security Letters" to obtain information from wire communications companies about their subscribers. NSLs are issued secretly and the recipient is prohibited from notifying anyone about the request.

As Judge Marrero noted in his ruling, "Section 2790 has been available to the FBI since 1986." He concludes that there must have been "hundreds" of NSLs issued since that time. The Patriot Act did amend Section 2790, but that amendment has nothing to do with the part that Judge Marrero says is unconstitutional.

One more thing: The Electronics Communications Act was not the invention of John Ashcroft. It was sponsored by that famous and menacing right-winger, Vermont Senator Patrick Leahy, who said at the time that Section 2790 "provides a clear procedure for access to telephone toll records in counterintelligence investigations."