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The US Justice Department wants to obtain sensitive customer records from ISPs, according to the Associated Press. It is asking a court to overturn a ruling that struck down sweeping investigative powers in the Patriot Act as unconstitutional.

The Patriot Act is properly called the USA Patriot Act, an acronym for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism. It was passed in the weeks following 9/11 as an anti-terrorism measure.

While the Act has been widely criticised for undermining civil liberties in the US, a lot of attention has focused on its treatment of what are known as "National Security Letters", or NSLs.

Prior to the Act, the FBI was entitled, without court approval, to issue NSLs that required ISPs and other communication providers to provide sensitive customer records on suspected terrorists and spies. Since the Act came into force, however, the FBI has been able to issue NSLs to obtain information about anyone if the request is, in the FBI's opinion, "relevant" to a terrorist investigation. Again, court approval is not required.

The American Civil Liberties Union (ACLU), the New York Civil Liberties Union and an unidentified ISP challenged the law last year. They were forced to file their lawsuit under seal (meaning it must be dealt with confidentially) to avoid penalties for violating gag provisions in the Act.

The lawsuit argued that the provision was worded so broadly that it could effectively be used to obtain the names of customers of websites such Amazon.com or eBay, or a political organisation’s membership list, or even the names of sources that a journalist has contacted by email.

In September, Judge Victor Marrero of the Southern District of New York struck down the NSL provision on the grounds that it violates free speech rights under the First Amendment as well as the right to be free from unreasonable searches under the Fourth Amendment.

“Democracy abhors undue secrecy," said the Judge, who also struck down the gag provision of the Act. "Under the mantle of secrecy, the self-preservation that ordinarily impels our government to censorship and secrecy may potentially be turned on ourselves as a weapon of self-destruction."

The Justice Department has now appealed, arguing, according to the Associated Press, that the fact that the ACLU has been able to challenge the NSL shows that the provision is constitutional.

But, speaking to the Associated Press, ACLU lawyer Jameel Jaffer explained that the Patriot Act does not actually contain provisions allowing challenges to be made to NSLs. That, he says, is why the ACLU filed the lawsuit.

"Most people who get NSLs don't know they can bring a challenge in court because the statute doesn't say they can," he said.

The Justice Department filing comes in the middle of Congressional debates over the proposed reauthorisation and expansion of the Patriot Act.

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

© Pinsent Masons 2000 - 2005

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