Good Morning Silicon Valley

If you’re scoring at home, that’s strike two for the idea that under the umbrella of national security investigations, the FBI, without oversight, can demand customer records from an Internet service provider while ordering the ISP never to disclose the probe to its customers or anyone else.

The original version of the USA Patriot Act, passed in 2001, granted the FBI, among other things, the power to issue “national security letters” to compel businesses like ISPs, phone companies and libraries to turn over their customer records. Not only could the NSLs be imposed without any court approval or subpoena, they carried a permanent non-disclosure order barring the targets from ever breathing a word. This struck civil liberties groups as a tad Orwellian, and in 2004, U.S. District Judge Victor Marrero agreed, saying, “Democracy abhors undue secrecy.” The government appealed, but in the meantime, Congress passed a revised version of the act that removed the blanket non-disclosure provision, but still allowed the FBI to invoke the gag when it saw fit, again without any judicial review.

Not good enough, said the ACLU, among others — no arm of the government should have the unfettered ability to deprive a citizen of free speech. “The executive branch cannot suppress speech without any real judicial check on its gag power,” said Melissa Goodman, an ACLU staff attorney. “Without oversight, there is nothing to stop the government from engaging in broad fishing expeditions, or targeting people for the wrong reasons, and then gagging Americans from ever speaking out against potential abuses of this intrusive surveillance power.”

Today, Judge Marrero agreed again, saying the revised act “offends the fundamental constitutional principles of checks and balances and separation of powers.” As written, he said, the law “reflects an attempt by Congress and the executive to infringe upon the judiciary’s designated role under the Constitution.” No word yet on whether the administration will stay in the batter’s box to take a few more swings at this, or whether they’re starting to get the message.

Meanwhile, civil liberties groups notched another court victory in the fight against broad assertions of national security used to keep us in the dark. U.S. District Judge Henry Kennedy on Wednesday said that if the National Security Agency wants to withhold public documents about its warrantless wiretapping of American citizens, it needs to come up with a better excuse than “they’re secret.” Ruling in a Freedom of Information Act suit, Kennedy ordered the Justice Department to come up with some more substantial reasons for withholding the documents by Oct. 26. “While the court is certainly sensitive to the government’s need to protect classified information and its deliberative processes,” wrote Kennedy, “essentially declaring ‘because we say so’ is an inadequate method for invoking exemption.” To which we can only add, amen.