Last week brought an extraordinary victory for privacy and civil liberties: a federal district court struck down a key power under the Electronic Communications Privacy Act (ECPA) and the USA PATRIOT Act. Specifically, US District Court Judge Victor Marrero ruled that "National Security Letters" (NSLs) violate the Constitution.
The letters, issued directly by the Department of Justice (DoJ) without any court oversight, can be used to demand sensitive communications records about citizens even if they are not suspected of any crime. When an Internet Service Provider (ISP) receives an NSL, it is forbidden from ever revealing its existence to anyone. Judge Marrero barred the DoJ from issuing any further NSLs and found the gag provision to be an illegal prior restraint on protected speech.
But that's not all. By recognizing that the First Amendment's rights to anonymity and association could be violated by NSLs seeking electronic communications transaction records from ISPs, the court significantly clarified privacy protections for Internet users.
Judge Marrero understood that records of "the anonymous message boards to which a person logs on or posts, the electronic newsletters to which he subscribes, and the advocacy websites he visits" are inextricably intertwined with protected speech. This means that judicial review is required before the government can impinge upon not only the right to post anonymously, but the right to read anonymously. Together with the court's holding that a "person who signs onto an anonymous forum under a pseudonym...is surely entitled to a reasonable expectation of privacy," the decision helps strengthen fundamental civil liberties in the Internet context, with implications far beyond the administrative subpoenas at issue in the case.
Addressing the Post-9/11 National Security Urgency:
"[C]ases engendering intense passions and urgencies to unencumber the Government, enabling it to move in secrecy...often pose the gravest peril to personal liberties. ...it is these conditions that best put the strength of our principles and convictions to the test, and measure our resolve and commitment to them. ...The high stakes here pressing the scales thus compel the Court to strike the most sensitive judicial balance, calibrating by delicate increments toward a result that adequately protects national security without unduly sacrificing individual freedoms..."
On First Amendment Privacy Rights:
"[T]he Court concludes that Section 2709 may, in a given case, violate a subscriber's First Amendment privacy rights... Every court that has addressed the issue has held that individual internet subscribers have a right to engage in anonymous internet speech ....No court has adopted the Government's argument here that anonymous internet speech or associational activity ceases to be protected because a third party ISP is in possession of the identifying information. ...the Court rejects the invitation to permit the right of internet anonymity and association to be placed at such grave risk."
The Danger to Anonymous Speech:
"The information available through a Section 2709 NSL served upon an ISP could easily be used to disclose vast amounts of anonymous speech and associational activity, [including] a log of email addresses with whom a subscriber has corresponded and the web pages that a subscriber visits. Those transactional records can reveal, among other things, the anonymous message boards to which a person logs on or posts, the electronic newsletters to which he subscribes, and the advocacy websites he visits," and can "enabl[e] the Government to specifically identify someone who has written anonymously on the internet."
Yet, "A person who signs onto an anonymous forum under a pseudonym...is surely entitled to a reasonable expectation that his speech...will not be accessible to the Government...absent appropriate legal process. To hold otherwise would ignore the role of the internet as a remarkably powerful forum for private communication and association. Even the Government concedes that the internet is an 'important vehicle for the free exchange of ideas and facilitates associations.'"
The Dangers of the Gag Provision:
"... public knowledge secures freedom. Hence, an unlimited government warrant to conceal, effectively a form of secrecy per se, has no place in our open society. Such a claim is especially inimical to democratic values for reasons borne our by painful experience. Under the mantle of secrecy, the self-preservation that ordinarily impels our government censorship may potentially be turned on ourselves as a weapon of self-destruction. ... a categorical and uncritical extension of non-disclosure may become the cover for spurious ends that the government may then deem too inconvenient, inexpedient, merely embarrassing, or illicit to expose to the light of day."