Unable to speak for more than three years about a government letter that demanded disclosure of his company's records, the president of an Internet service provider is now questioning the validity of certain USA Patriot Act provisions.
Penn State professors are also questioning the provisions.
To avoid having to receive approval from a judge in order to issue a national security letter, the U.S. government is appealing a September ruling that declared a provision of the Patriot Act unconstitutional that allows government officials to get personal information.
The plaintiff in the case, the president of an Internet service provider company, is represented by the American Civil Liberties Union and is listed only as John Doe because of the gag order that accompanied the national security letter (NSL) issued to him.
A NSL demands a service provider hand over records and information of interest in a national security case, said Gregory McNeal, visiting assistant professor of law.
Before the Patriot Act, the letters could be issued without judge or jury approval, but only if its target was directly related to national security, McNeal said.
"Having a federal judge required to approve the obtaining of personal phone records [and other personal information] is a good solution," said Robert Richards, distinguished professor of journalism and law and founding co-director of the Pennsylvania Center for the First Amendment. "It's part of the checks and balances of the system."
In September, U.S. District Judge Victor Marrero ruled in John Doe's case that the government should not have access to personal phone, e-mail and financial records without a judge's approval, as allowed by the Patriot Act.
One problem with the Patriot Act is that there is no way for the public to determine how effective it has been, especially in regard to the letters, said Scott Bennett, a political science professor.
"The government says [NSLs are effective], but they won't release any information about them," he said. "They won't say, for instance, 'we've captured 50 terrorists, and 25 of them were because of these letters.' We just have absolutely no idea."
Kevin Murphy, director of the International Center for the Study of Terrorism, said more checks and balances could be beneficial.
"Having some sort of judicial oversight seems to make a lot of sense from many points of view," he said. "It seems pretty clear from federal law that that's required."
McNeal said Marrero's ruling will probably be overturned because of constitutional issues.
"You have a reasonable expectation [of privacy] in certain areas, but not with a service provider," he said. "When you give your personal information over to a third party under the Fourth Amendment, you don't have an expectation to privacy."
The Patriot Act has created controversy since its enactment after the Sept. 11 terrorist attacks, when it was rushed through Congress, Murphy said.
"It was passed hurriedly," he said. "It's a very complicated law ... there's certainly questions as to whether this is the best approach or whether parts of the Patriot Act need to be changed."
Murphy said the gag order provision -- which prevents anyone with a national security letter from discussing it -- complicates the appeal process.
"The scary thing about the NSLs is that you can't even tell anybody that you've been asked about something. So, it sort of forbids you to go through the judicial process because when you do that, you're violating the order," he said. "There are real concerns about checks and balances here."
The Associated Press contributed to this report.
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