ACLU: Patriot Act, free speech clash

Congress does not have the power to demand silence from people forced to turn over electronic communications such as Internet records used to investigate terrorism, an American Civil Liberties Union lawyer argued Wednesday.

During oral arguments in U.S. District Court in Manhattan, ACLU lawyer Jameel Jaffer told Judge Victor Marrero he must strike down a part of the USA Patriot Act that lets the FBI request records without the kind of court order required of other government searches.

"It doesn't allow for meaningful judicial review," Jaffer said of the so-called national security letters, or NSLs, investigative tools used by the FBI to compel businesses to turn over customer information without a judge's order or grand jury subpoena.

The law also disregards First Amendment rights by permitting law enforcement to ban those who receive the letters from talking about them publicly, he said.

"We do think it's a classic prior restraint because it conditions speech on the permission of executive officers," he said.

Assistant U.S. Attorney Jeffrey S. Oestericher said it is within the government's power to ban people from talking about the letters.

"We're talking about information someone learns as part of a confidential government investigation," he said.

The judge did not immediately rule Wednesday.

In 2004, Marrero ruled that the letters violate the Constitution because they amount to unreasonable search and seizure. He found that the nondisclosure requirement violated free speech.

The case pertained to an unidentified Internet access firm that received one of the letters, in which the FBI certified that phone or Internet records are "relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities."

The 2nd U.S. Circuit Court of Appeals in Manhattan later returned the case to the judge to reconsider the issues after Congress changed the law in 2005 to specify that an NSL can be reviewed by a court, and to allow recipients of the letters to tell their lawyers about them.

The ACLU said, however, that the changes didn't go far enough because the government still can give people letters before a court review, and recipients still can be barred from talking about the letters publicly.

After Congress revised the law, Circuit Judge Richard Cardamone wrote that concerns about national security in terrorism investigations should be balanced with "common sense so as not forever to trump the rights of the citizenry under the Constitution."

He was critical of what he called the government's recent insistence that a permanent ban on speech is sometimes permissible under the First Amendment. He said he suspected "a perpetual gag on citizen speech of the type advocated so strenuously by the government may likely be unconstitutional."