New York — The U.S. government violates the Constitution when it demands that companies turn over Internet and telephone records so it can fight terrorism or gather intelligence and then bars them from ever disclosing the search took place, a judge ruled Wednesday.
U.S. District Judge Victor Marrero ruled against a federal law authorizing the FBI to force communications companies such as Internet service providers and telephone companies to produce certain customer records to aid in the government's efforts against terrorism.
Stating that personal security was as important as national security, Judge Marrero issued his decision in favour of an Internet access firm identified in his 120-page ruling as “John Doe.” He had agreed to keep the firm's identity secret to protect the FBI probe that led to the search request.
In issuing his ruling, Judge Marrero said he was not minimizing the importance of the government's work, calling national security of “paramount value, unquestionably one of the highest purposes for which any sovereign government is ordained.”
He said the government “must be empowered to respond promptly and effectively” to threats and to retain reasonable amounts of secrecy about its operations and methods. But he called personal security equal in importance and “especially prized in our system of justice.”
The judge said the law violates the Fourth Amendment because it bars or deters any judicial challenge to the government searches, and violates the First Amendment because its permanent ban on disclosure is a prior restraint on speech.
Judge Marrero said his ruling blocks the government from issuing the requests or from enforcing the non-disclosure provision “in this or any other case.” However, he stayed the effect of the ruling pending appeal or for at least 90 days, if there is no appeal.
Megan Gaffney, a spokeswoman for the federal prosecutor's office in Manhattan, said the government was reviewing the decision and had no immediate comment.
The judge described the law as “so broad and open-ended” that it blocked companies from revealing the existence of the FBI inquiry “in every case, to every person, in perpetuity, with no vehicle for the ban to ever be lifted from the recipient.”
He noted that the Supreme Court recently said that a “state of war is not a blank check for the president when it comes to the rights of the nation's citizens.”
“Sometimes a right, once extinguished, may be gone for good,” Judge Marrero wrote.
The government was authorized to pursue communications records in a section of the Electronic Communications Privacy Act of 1986. Its powers were enhanced by legislation passed after the Sept. 11, 2001, terrorist attacks.
In a footnote to his ruling, Judge Marrero cited words he had written two years ago in another case to warn that courts must apply “particular vigilance to safeguard against excess committed in the name of expediency.”
He said the vigilance was necessary “to ensure that Americans do not succeed where the terrorists failed, inflicting by their own hand the deeper wrongs to the nation's essence that the Sept. 11 external attacks upon physical structures and innocent people were unable to realize.
“In short,” he added, “the Sept. 11 cases will challenge the judiciary to do Sept. 11 justice, to rise to the moment with wisdom equal to the task, its judgments worthy of the large dimensions that define the best Sept. 11 brought out of the rest of American society.”
