So-Called “Patriot Act” is Finally Challenged Legally

It’s about time the Orwellian named Patriot Act faced its day in court. The supposed necessary security measure inspired by the terrorist attack of Sept 11 has among other things granted the FBI power to issue National Security Letters that undermine the Constitutional right to require a warrant to search citizen’s privacy. These NSL’s have been issued in the hundreds of thousands. With them the FBI needs no court mandate but merely needs to state that a security risk is involved. This has led them to not only force ISPs and telephone companies to give records of phone calls and internet activity, but to impose a gag-order so the company can’t speak about it. An anonymous telecom company — some believe it is San-Francisco based Credo — has challenged not only the gag-order, but the FBI’s right to make the NSL to begin with. In reply, the FBI has sued the company for violating the law by challenging its authority — and they are doing this despite the fact that the Patriot Act allows its authority to be challenged.

As the FBI explains, the Patriot Act lets a recipient challenge an individual NSL, but not the fundamental NSL law. The Electronic Frontier Foundations’ Matt Zimmerman, who is representing the telecom, finds the 1984 logic behind the whole enterprise incredible. “It’s a huge deal to say you are in violation of federal law having to do with a national security investigation. That is extraordinarily aggressive from my standpoint. They’re saying you are violating the law by challenging our authority here.”

The telecom released the information to the Wall Street Journal, violating the gag order, and challenged the belligerent authority of the FBI for violating the First Amendment rights to Free Speech.

But how is the FBI using its inviolable authority? A 2007 audit by the Justice Department Inspector General uncovered many instances of abuse in the over 300,000 FBI uses of NSLs. For example, they paid millions to AT&T and Verizon to assign their employees to work inside the FBI and give them telecom database access, thereby gaining access to customer records without so much as paperwork or an NSL.

Despite the terrible temptation to tyranny and abuse of such a “Patriotic” law, temptations to which the FBI has in fact succumbed, very few have challenged its authority according to the challenge process it sets out. There have been only four challenges to the gag-order, and exactly zero to the fundamental legality of the NSL. Until now.

That the FBI is suing the telecom courageous enough to challenge its authority is drastic. “It was eye-opening to us that they followed that approach,” said Zimmerman.

He also said that the FBI is “asking for association information — who do you hang out with, who do you communicate with, [in order] to get information about previously unknown people.”

“That’s the fatal flaw with this [law],” Zimmerman says. “Once the FBI is able to do this snooping, to find out who American are communicating with and associating with, there’s no remedy that makes them whole after the fact. So there needs to be some process in place so the court has the ability ahead of time to step in [on behalf of Americans].”

Let’s hope this case makes it to the court.