RCFP: Court finds Patriot Act gag orders unconstitutional

NEWS MEDIA UPDATE New York · December 18, 2008 · Prior restraints

Court finds Patriot Act gag orders unconstitutional

Keywords: ACLU; National Security Letters; Prior restraint

The U.S. Court of Appeals in New York (2nd Cir.) this week struck down a portion of the Patriot Act that placed a gag order on recipients of "national security letters."

Share:
· Facebook
· LinkedIn
· Email
Print
Link

The letters are administrative subpoenas sent by the FBI to organizations -- telephone companies, Internet service providers, financial institutions, and even libraries -- requesting subscriber information. The letters prohibit the recipients from speaking about their contents to anyone, including the customers whose information the FBI is requesting.

The American Civil Liberties Union challenged the law as a prior restraint on speech. In a ruling this week, the appellate court partially upheld the lower court’s ruling and agreed with the ACLU that the gag orders violated the First Amendment. The court shifted the burden of proof for the necessity of the gag order to the government.

In effect the decision gives courts the opportunity to determine whether government restrictions on speech are justified, instead of allowing the FBI to make that call.

“The fiat of a government official, though senior in rank and doubtless honorable in the execution of official duties, cannot displace the judicial obligation to enforce constitutional requirements,” wrote Judge Jon O. Newman in the opinion.

The ruling also means that the government must justify the gag order that has been placed on the John Doe plaintiff in this case for the past four years.

The ACLU applauded the decision in a statement released on the organization’s Web site.

“We are gratified that the appeals court found that the FBI cannot silence people with complete disregard for the First Amendment simply by saying the words 'national security,'” said Melissa Goodman, staff attorney with the ACLU National Security Project. “This is a major victory for the rule of law. The court recognized the need for judicial oversight of the government's dangerous gag power and rejected the Bush administration's position that the courts should just rubber-stamp these gag orders.”

— Samantha Fredrickson, 5:25 pm

Comments: (1)

Comment by atarget, Wed, Dec 24, 2008, 6:57am

Here is a possibility to fight Carnivor or DCS-1000, Echelon, or what ever they called this thing. The spyware is reaching your computer on its own frequency, different from dial-up, DSL or cable. It could be filtered out by relatively simple electronic devices, but the Big Brothers do not allow selling these filters, so you have to make them for your self. The simplest one is just a capacitor 0.01-0.03 uF range, like this in RadioShack store: 0.01µF 500V 20% Hi-Q Ceramic Disc Capacitor Pk/2 Model: 272-131 | Catalog #: 272-131.

Connect red and green wires in your phone socket with this capacitor. Your computer also can be reached through the AC power line by one of dear neighbor terminal operators, so protect your power divider. Open its cover and use three of these capacitors to connect plus and minus, minus and ground, plus and ground pairs of wires in the AC divider. Disconnect any radio frequency devices, like Wi-Fi adaptor, Wireless router.

Now the spyware will have a substantial interference in getting you information. Nothing will happen first, but after a while your Internet will going slow, sometimes very slow. This thing is going to use your Internet channel to intercept your activities. And it needs a lot of traffic, much more than the target computer uses for itself.

Verizon on-line traffic analyzer used to show that my ”traffic is used by unknown application.” When I started to ask questions to tech support on slowing my Internet, they simply removed this option from their speed report. They blamed wires, my WLAN card, my software and possible virus infections. They played a fool. I have spent many hours talking to my ISP tech support. But I have saved the speed reports for one year and I can go to the court. They have a right to spy on me, but I am still not obligated to pay for this from my pocket.

Submit a comment