The Patriot Act is properly called the
USA
Patriot
Act, an acronym for Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism. It
was passed in the weeks following 9/11 as an anti-terrorism
measure.
While the Act has been widely criticised for undermining civil
liberties in the
US
, a lot of attention has focused on
its treatment of what are known as "National Security Letters," or
NSL
s.
Prior to the Act, the
FBI
was entitled, without
court approval, to issue NSLs that required
ISP
s and
other communication providers to provide sensitive customer records
on suspected terrorists and spies. Since the Act came into force,
however, the
FBI
has been able to issue
NSL
s to obtain information about anyone if the request
is, in the
FBI
's opinion, "relevant" to a terrorist
investigation. Again, court approval is not required.
The American Civil Liberties Union (
ACLU
), the New
York Civil Liberties Union and an unidentified
ISP
challenged the law last year. They were forced to file their
lawsuit under seal (meaning it must be dealt with confidentially)
to avoid penalties for violating gag provisions in the Act.
The lawsuit argued that the provision was worded so broadly that
it could effectively be used to obtain the names of customers of
web sites such Amazon.com or eBay, or a political organisation's
membership list, or even the names of sources that a journalist has
contacted by e-mail.
In September, Judge Victor Marrero of the Southern District of
New York struck down the
NSL
provision 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.
"Democracy abhors undue secrecy," said the Judge, who also
struck down the gag provision of the Act. "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."
The Justice Department has now appealed, arguing, according to
the Associated Press, that the fact that the
ACLU
has
been able to challenge the
NSL
shows that the
provision is constitutional.
But, speaking to the Associated Press,
ACLU
lawyer
Jameel Jaffer explained that the Patriot Act does not actually
contain provisions allowing challenges to be made to
NSL
s. That, he says, is why the
ACLU
filed the lawsuit.
"Most people who get
NSL
s don't know they can bring
a challenge in court because the statute doesn't say they can," he
said.
The Justice Department filing comes in the middle of
Congressional debates over the proposed reauthorisation and
expansion of the Patriot Act.
On Thursday, the Senate Select Committee on Intelligence held a
closed-door session to mark up legislation that would re-authorise,
and expand, the Patriot Act. The
ACLU
denounced the
secret session, saying that the debate and vote on a
public law should be public.
