Guarding privacy: A New York judge strikes down a law allowing secret government searches
Timesunion.com, Albany, NY, First published: Sunday, October 3, 2004

It's a straightforward proposition. An example of where jurisprudence intersects squarely with common sense. If government agents are going to obtain your Internet or telephone records, they have to inform you that such a search took place.

Only it took a ruling by a courageous federal judge, Victor Marrero of New York City, to strike down a law that allowed the government to conduct such secret searches. Until Wednesday, it was perfectly OK for the FBI to force Internet service providers and telephone companies to discreetly produce the records of certain customers.

Such is the state of a seemingly unending battle to preserve civil liberties while fighting terrorism.

Judge Marrero sensibly found the law too broad and open-ended. The law in question banned companies from revealing the existence of such government intrusion, he said, "in every case, to every person, in perpetuity, with no vehicle for the ban to ever be lifted from the recipient."

The law had been on the books since 1986, but was rewritten in the post-9/11 frenzy to take on terrorism without stopping to consider the consequences. It's now part of the Patriot Act.

"Sometimes a right, once extinguished, may be gone for good," Judge Marrero wrote in his decision.

In a footnote to his ruling, he cited what he had written two years ago in another decision. "The Sept. 11 cases will challenge the judiciary to do Sept. 11 justice, to rise to the moment with wisdom equal to the task, its judgments worthy of the large dimensions that define the best Sept. 11 brought out of the rest of American society."

Case closed, then?

Hardly. Not as long as John Ashcroft is the attorney general.

By Thursday, Mr. Ashcroft was dropping strong hints at an appeal.

That would leave it to a higher court and, most likely, the Supreme Court to review a law so clearly in violation of the Fourth Amendment, since it stands in the way of judicial challenge to government searches, and the First Amendment, because its permanent ban on disclosure is a prior restraint on speech.

It happens, of course, that the battle lines are drawn at the height of a presidential campaign. Which will it be, then, more judges like Victor Marrero, or more attorneys general like John Ashcroft?


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