Volume II

Issue : 19: October 7, 2004

• Ontario Superior Court Examines Organization and Commercial Activities under PIPEDA
• Australian Court Finds Copyright Infringement in Data Mining of .UK WHOIS Database
• Court Strikes Down Anti bootlegging Statute
• U.S. Appeals Courts Finds Websites not Places of Public accommodation Under Disability Legislation
• Ontario Court affirms Privilege Extends to Electronic File References in Pleadings
• U.S. District Court Strikes Down Statutory Amendments Made by U.S. Patriot Act
• Recent Decisions of Privacy Commissioner Review Practices of Satellite Television Provider and Contest Sponsor
• California Court Finds Misuse of Digital Millennium Copyright Act
• Ontario Court of Appeal Releases its Decision in Robertson Case Holding Database Inclusion Constituted Copyright Infringement

Home > Volume II > Issue 19: October 7, 2004 > U.S. District Court Strikes Down Statutory Amendments Made by U.S. Patriot Act

U.S. District Court Strikes Down Statutory Amendments Made by U.S. Patriot Act

The U.S. District Court for the Southern District of New York (the "Court") recently held unconstitutional provisions of the Electronic Communications Privacy Act (the "ECPA") which authorize the FBI to compel communications firms, such as ISPs or telephone companies, to produce certain customer records where the FBI certifies that such records are relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities. Under the ECPA, a demand made by the FBI to compel such records is made pursuant to a form of administrative subpoena referred to as a National Security Letter (or "NSL"). The ECPA also bars the recipient of an NSL from ever disclosing that such NSL has been issued.

The provisions of the ECPA at issue in the case have been in existence since their enactment in 1986. However Section 505 of the USA Patriot Act of 2001 amended such provisions to remove a requirement that there be a factual nexus between the person whose information was being sought and a foreign power or foreign agent and replaced that requirement with a broad standard of mere relevance of the information to investigations of terrorism or clandestine activities.

The Court found that the impugned provisions of the ECPA violated the First and Fourth Amendments of the U.S. Constitution. In particular, the prohibition against disclosing to any person that an NSL had been issued operated as an unconstitutional prior restraint on free speech in violation of the First Amendment. Moreover, concerned with the lack of judicial oversight, the Court found that the impugned provisions effectively barred or substantially deterred any judicial challenge to the propriety of an NSL request.

For a copy of the decision, visit:

http://www.nysd.uscourts.gov/rulings/04CV2614_Opinion_092904.pdf