On Sept. 6, the U.S. District Court for the Southern District of New York ruled that a controversial section of the USA PATRIOT Act is unconstitutional. In John Doe v. Gonzales, Judge Victor Morrerro ruled that the National Security Letter (NSL) provisions of the USA PATRIOT Act are in violation of the separation of powers doctrine and the First Amendment's protection of free speech.

The NSL provisions of the USA PATRIOT Act gave the Federal Bureau of Investigation (FBI) the power to issue NSLs to obtain records from businesses about their customers. The legislation broadened the ability to use NSLs, which previously were restricted to suspected terrorists or spies, to cover any information that is "relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities." Without court approval, the FBI can issue NSL requests that require Internet service providers, telephone companies, credit reporting agencies and banks to disclose information relating to individuals':

• Internet use: websites visited and the e-mail addresses to which and from which e-mails were sent or received
• Telephone use: the times and durations of calls and the numbers to which or from which calls were received or dialed
• Financial transactions: checking and savings account information, credit card transactions, loan information, credit reports and other financial information

The USA PATRIOT Act also expanded approval authority of NSLs beyond senior FBI Headquarters officials to all special agents in charge of the FBI's 56 field offices. There is no policy regarding how long information collected through NSLs can be maintained or under what circumstances information must be disposed. Moreover, the order is mandatory and is accompanied by a gag order that prevents the recipient from disclosing the existence of the NSL with anyone besides legal counsel.

Doe v. Gonzales was remanded from the Second Circuit back to the U.S. District Court after the reauthorization of the USA PATRIOT Act changed the NSL provisions to explicitly allow for judicial review and consultation with counsel. The District Court originally found the PATRIOT Act provisions unconstitutional. Morrerro, in ruling for the District Court, affirmed that the revised provisions still violate the Constitution. He said,"The Court finds that several aspects of the revised nondisclosure provision of the NSL statute violates the First Amendment and the principle of separation of powers."

Morrerro cites a report by the Office of the Inspector General (OIG) at the Department of Justice (DOJ), which uncovered widespread abuse of the NSL powers. In March, OMB Watch reported on the OIG's findings:

• 39,000 NSL requests were issued by the FBI in 2003, 56,000 in 2004 and 47,000 in 2005.
• OIG investigation found that the FBI significantly underreported the requests.
• One-fifth of the reviewed files contained unidentified violations of NSL legislation and policy.
• 700 emergency letters ("exigent letters") were used to collect information from three telecommunications companies on over 3,000 telephone numbers in violation of law and policy.

Morrerro stated that the OIG findings support the claim that the NSL provisions are too susceptible to abuse. "[A]s powerful and valuable as it may be as a means of surveillance, and as crucial the purpose it serves, the NSL nonetheless poses profound concern to our society, not the least of which, as reported by the OIG, is the potential for abuse in its employment," he wrote.

"As this court recognized, there must be real, meaningful judicial checks on the exercise of executive power," said Melissa Goodman, ACLU staff attorney who was counsel on the case. "Without oversight, there is nothing to stop the government from engaging in broad fishing expeditions, or targeting people for the wrong reasons, and then gagging Americans from ever speaking out against potential abuses of this intrusive surveillance power."

The court issued a 90-day stay on the order to enjoin the FBI from issuing NSLs. This will allow the government to appeal the decision to the U.S. Court of Appeals for the Second Circuit, which is the government is expected to do.