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Patriot Act Provision Lets the Federal Government Grab Personal Records Secretly

The "national security letter" provision of the Patriot Act goes too far in letting the government secretly gather confidential records and gagging those ordered to turn them over, the American Civil Liberties Union said in testimony before a key panel of lawmakers Thursday.

"This provision lets the government force businesses to turn over confidential records in 'national security investigations,' even if the investigation isn't linked to criminal activity," said Gregory T. Nojeim, Acting Director of the ACLU Washington Legislative Office, who appeared before the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security. "Those served with these secret order are gagged from telling anyone about it. Lawmakers need to make sure these letters aren't used to gather information about lawful political or religious activities that are protected under the Constitution."

A key court ruling against a portion of the Patriot Act involved this provision. The ACLU and an anonymous Internet Service Provider had filed a lawsuit challenging the FBI's authority to issue national security letters. In September 2004, Judge Victor Marrero of the Southern District of New York issued a landmark decision striking down the NSL statute and the associated gag provision, stating that "Democracy abhors undue secrecy. . . . [A]n unlimited government warrant to conceal, effectively a form of secrecy per se, has no place in our open society."

The Justice Department and the administration have argued that this national security letter power was on the books long before the Patriot Act. But that's not the whole truth, the ACLU noted. While the statute struck down was enacted in 1986, the Patriot Act dramatically expanded it.

The original statute allowed the FBI to issue national security letters only where it had reason to believe that the subject of the letter was a "foreign agent," like a spy or a terrorist. Section 505 of the Patriot Act removes the individualized suspicion requirement and authorizes the FBI to use national security letters to obtain information about anyone at all if the FBI says the records are relevant to an intelligence investigation.

Also on Thursday, in the Senate, the Senate Select Committee on Intelligence held a closed-door session to mark up legislation that would reauthorize, and expand, the Patriot Act. The ACLU denounced the secret session, saying that the debate and vote on a public law should be public.

"Nearly 400 communities - including seven states - have passed resolutions calling on Congress to amend the Patriot Act to restore basic checks and balances," Nojeim said. "These resolutions don't ask lawmakers to scrap the whole law-they call for reasonable fixes to the worse provisions, like section 505, that would bring the law in line with the Constitution."

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