Federal Judge Strikes Down Gag Orders Under Patriot Act

The portion of the Patriot Act which makes it a crime to reveal that one has been investigated under the Act has been called unconstitutional by a federal judge:

A provision of the Patriot Act that requires people who are formally contacted by the FBI for information to keep it a secret is unconstitutional, a federal judge ruled on Thursday.

U.S. District Judge Victor Marrero sided with the American Civil Liberties Union, which brought the lawsuit and argued that an FBI letter requesting information — called a National Security Letter — is effectively a gag order but without the authorization of a judge.

The FBI tells people who receive the letters to keep them secret, but recipients can challenge the secrecy order in court under a 2006 congressional amendment to the NSL law.

The law says judges must defer to the FBI’s view that secrecy is necessary, undermining the judiciary’s check on the power of the executive branch, the ACLU said.

In a written ruling issued on Thursday, Marrero said the gag order violated the First Amendment guarantee of free speech and was unconstitutional.

Marrero based his ruling on the seriousness of the potential intrusion on privacy and on “the significant possibility of a chilling effect on speech and association — particularly of expression that is critical of the government or its policies.”

According to the ACLU, more than 143,000 National Security Letters were issued between 2003 and 2005. The U.S. Attorney’s office is considering an appeal of this ruling.

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