Federal Court Strikes Down a Portion of the Patriot Act as Unconstitutional

On Sept. 29, 2004, the United States District Court for the Southern District of New York held that Section 2709 of the Electronic Communications Privacy Act (“ECPA”), which requires cable operators and telecommunications carriers to secretly provide information on subscribers to the FBI in response to “National Security Letters” or “NSLs,” was unconstitutional under the First and Fourth Amendments. Section 2709 of ECPA, amended by the Patriot Act in 2001, allows the FBI to investigate terrorist and clandestine intelligence activities by requiring the disclosure of information on a subscriber without notice to the subscriber and without any proof that the subscriber was involved in any intelligence or terrorist activities.

Specifically, Section 2709 provides that in response to certain NSLs, “wire and electronic communications service providers” must provide the FBI with the name, address, length of service and, in some cases, local and long distance billing records of a subscriber, upon the FBI’s written certification that the information sought is “relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities.” 18 U.S.C. § 2709(b)(2). Unlike most other information demand mechanisms available to law enforcement, however, Section 2709 expressly prohibits recipients, their officers, agents and employees from disclosing, at any time and to any person, that they received an NSL. As a result, the case was put “under seal” and captioned under the plaintiff’s pseudonym “Doe,” in order to maintain the secrecy surrounding the letters, their recipients, and their investigative targets.

In Doe v. Ashcroft, United States District Judge Victor Marrero struck down Section 2709 because, as applied, it permits unlawful search-and-seizure methods through use of NSLs and authorizes coercive searches immune from judicial challenges. Absent a mechanism for judicial review, the court noted, the information demanded through an NSL may also violate a subscriber’s right to anonymous speech. In addition, the judge ruled that the nondisclosure provision is overbroad and constitutes an unconstitutional prior restraint on speech under the First Amendment, because it imposes a permanent ban on disclosure in every instance and could be reasonably construed by an NSL recipient to prohibit disclosures even to an attorney. The decision implicitly clarifies that recipients of NSLs may consult an attorney. In addition, the judge’s overt disapproval of NSLs that are phrased to sound like “biblical commandments,” coercing “the reasonable recipient into immediate compliance,” potentially raises doubts about secrecy and other language used in more traditional search warrants and subpoenas under Sections 2703 and 2705 of ECPA.

Although Judge Marrero enjoined the FBI from issuing NSLs or enforcing the non-disclosure requirements under Section 2709, he also entered a 90-day stay to allow time for filing an appeal, thus permitting the continued use of NSLs until at least Dec. 28, 2004, absent further judicial intervention. The Justice Department has since announced that it will appeal.

If you receive an NSL or other demand for subscriber information, and/or if you would like additional information regarding the decision, please contact us.