Patriot Games

Spinning the invalidation of the government’s spy laws.

In a case in which a federal judge found a key provision of the Patriot Act unconstitutional last year, the government insisted on blacking out from legal papers the phrase “the [still redacted] NSL violates the First, Fourth and Fifth Amendments.”

And that’s just one of the details the ACLU released today, about government attempts to cloak in secrecy the lawsuit that led to the invalidation, last September, of the National Security Letters provision of the USA Patriot Act. NSLs allow the FBI to demand sensitive customer records from providers of electronic communication services and other businesses without judicial oversight, and they do so under guidelines so broad that critics have said they amount to blanket permission to spy on innocent Americans. After the NSL provision was deemed unconstitutional, the Justice Department appealed the decision in late December.

These redactions were the legal equivalent of trying to contain an explosion while it is still happening. The explosion was the lawsuit itself—which exposed for the first time the operation of a law meant to function in complete darkness. The entire process also demonstrated an immutable law of democracy: If you keep squeezing more and more secrecy into a limited space, it will eventually reach critical mass and blow up in your face. The overturned law contained such strict secrecy rules that it effectively cut citizens off from each other and from judicial recourse, which was the main reason the judge declared the law unconstitutional.

It all started sometime before April of last year, when the FBI sent a National Security Letter to an Internet service provider, similar to hundreds of similar letters apparently sent to other electronic communication service providers following the passage of the Patriot Act in October 2001. The letter instructed the ISP to turn over to the FBI certain information, which still remains secret but apparently included some sort of customer records. The letter “further advised” the ISP that the law prohibited him or anyone working for him from disclosing even the existence of the letter itself to “any person.”

If that letter meant what it said—and it would take a bold soul to bet it didn’t—even talking to an attorney could have meant going directly to jail. Additionally, and though a non-lawyer might not have known it, the law allows the FBI to send these letters without the prior approval of a judge or anyone but an FBI “Special Agent in Charge” in a field office. In short, there was no way for a judge to decide the merits of these letters either before or after they were sent. Meaning there could never be a constitutional challenge to the letters, nor to the law that authorized them.

The ISP contacted the ACLU with a challenge in mind, although according to the record, he believed an FBI agent told him he could speak to counsel; the FBI claims that never happened. Either way, the ISP and the ACLU filed suit against the NSL law, while at the same time fighting the government’s attempts to keep the whole controversy secret. The ACLU wasn’t even permitted to disclose it had challenged the law until three weeks after it filed suit, and the name of the ISP even now remains a secret.

In late September, Judge Victor Marrero of the United States District Court in New York overturned the law, staying his ruling for 90 days or pending appeal. Arguments in the appeal are expected to begin in about three months. But the damage control and spin efforts—to make the loss appear insignificant—began months ago.

The ACLU, and most news accounts, described Marrero’s September decision as overturning a key provision of the Patriot Act. That was a reasonable description because the NSL law was one of a number of measures the Patriot Act souped up to drive the most powerful vehicle ever assembled for gathering private information about American citizens. Conservatives such as Sen. John Cornyn of Texas, on the other hand, argued that the ruling had nothing to do with the Patriot Act. They noted that the Electronic Communication Privacy Act first authorized NSLs in 1986, and they’ve been in use, complete with gag provision, ever since. They claim the Marrero decision did nothing but overturn a nearly two-decades-old law, meaning the basic principles that inspired the Patriot Act remained above reproach, or at least undamaged.

That’s not quite accurate, though, and to clear up the confusion, it helps to look at how Section 505 of the Patriot Act changed the 1986 NSL law—namely, Section 2709 of the ECPA. The most important change was to drastically lower the standards the FBI had to meet to give itself permission to send out NSLs. Before the Patriot Act, the subject of the NSL had to be a suspected foreign intelligence agent or terrorist, or to have had contact with one. After Patriot, the records sought needed merely be “relevant” to a national security investigation—which might mean whatever the FBI thought it meant.

The FBI, free of any need for a judge’s OK, could conceivably issue NSLs in at least three ways: in accordance with the new, looser rules; in accordance with the older, more restrictive rules; or in violation, intentional or not, of any and all rules. It’s also conceivable that at least some of the resulting NSLs could violate the constitutional rights of citizens. For example, Judge Marrero himself noted that the FBI could theoretically use an NSL to demand that a political campaign turn over the names of everyone with an e-mail address through the campaign’s computer system, or to discern the identity of the author of an anonymous blog critical of government. Previous decisions, he observed, have established such constitutional rights as anonymous association and speech.

Ultimately, Judge Marrero had no need to decide whether any given type of NSL violated any specific constitutional rights of individuals, nor did he need to gauge the honesty of the FBI. All he needed to know was that such violation was possible and that the secrecy provisions built into the law meant there was no way to have a future judge probe any such question about any NSL. That lack of recourse made the entire law unconstitutional in his view.

Marrero ruled that NSLs, at the time of the lawsuit, presented a serious enough threat to citizens’ constitutional rights that the lack of access to judicial review was a fatal flaw. That means those who want to claim that the ruling had nothing to do with the Patriot Act have their work cut out for them. To make their case, they have to penetrate the mind of the judge and discern that he would have made the same decision about pre-Patriot Act NSLs that he did about post-Patriot Act ones. And that would be a hard sell, given that the earlier NSLs carefully targeted only spies and terrorists.

In one sense, it doesn’t matter whether the public believes the decision overturned a part of the Patriot Act or part of the ECPA. The practical effect, if the ruling is upheld on appeal, will be that the government no longer has these vastly expanded powers of surveillance over ordinary American citizens it received under the Patriot Act. In fact, it will have lost the powerful NSL tool itself, unless lawmakers introduce new legislation to reinstate such powers.

But that’s where, in another sense, it does matter what ordinary people think happened in that New York court. If the ruling signals that judges may have serious doubts about the constitutionality of the Patriot Act, at least in terms of government surveillance of citizens, writers of future such legislation will tread cautiously. If the ruling seems merely about the flaws of an older, relatively innocuous law, they’ll be bolder. And any unwarranted boldness, even if later corrected in court, can do a lot of damage in the meantime.

If Judge Marrero’s ruling is overturned on appeal, of course, this boldness is warranted. Either way, the renewal of the sections of the Patriot Act due to sunset this year could hinge on the outcome of this appeal, and on the spin campaign that accompanies it.