Thursday, Sept. 30, 2004 | 11:09 a.m.
SUN STAFF AND WIRE REPORTS
In a blow to the Justice Department's post-Sept. 11 powers, U.S. District Judge Victor Marrero on Wednesday struck down the provision of the Patriot Act that let the FBI gather phone and Web customer records but barred service providers from ever disclosing the search took place.
The American Civil Liberties Union, which challenged the Patriot Act in federal court, said this morning the ruling also declared unconstitutional the provisions of the Patriot Act that the FBI used in December to obtain customer records for thousands of visitors staying at Las Vegas hotels over the New Year holiday.
"I wouldn't presume to tell any business what to do, but the ruling certainly suggests strongly (casinos) have the right to refuse these types of records requests," said Gary Peck, executive director of the ACLU in Nevada.
But a spokesman for the Justice Department in Washington, D.C., said today that the ruling has no bearing on the FBI's actions in Las Vegas.
The matter of casinos, car rental services or other businesses giving up guest lists is something Congress authorized separately, spokesman Mark Corallo said.
"That is not related to this at all," he said. "It has nothing to do with that provision."
The ACLU's national office filed suit on behalf of an Internet access firm identified in the 120-page ruling simply as "John Doe." Marrero had agreed to keep the firm's identity secret to protect the FBI probe that led to the search request. The FBI requested "certain information" through a national security letter.
The Justice Department will likely appeal the court ruling, Attorney General John Ashcroft said today.
Ashcroft, in the Netherlands to meet with European Union officials, said he would study the decision upon returning to Washington, but "it's almost a certainty it will be appealed."
"We believe the act to be completely consistent with the United States Constitution," he told reporters.
Casinos said they are reviewing how the ruling applies to how the FBI used the Patriot Act to obtain information from hotels.
"We have always tried to find the right balance between protecting the privacy of our customers and following the law as it relates to national security issues," Caesars Entertainment Inc. spokesman Robert Stewart said. "That's not always an easy balance to find."
"Our policy has always been to comply with the rules and regulations of every jurisdiction in which we operate," Harrah's Entertainment Inc. spokesman Gary Thompson said. "We're fully cognizant for the need to protect customer confidentiality. But if we receive subpoenas or requests from regulators we comply with those requests." Top casino industry spokesman Frank Fahrenkopf, president of the American Gaming Association, was unavailable for comment on the ruling. It may be premature to speculate on the ruling's effect on casinos, given the likelihood of an Ashcroft appeal, AGA spokeswoman Naomi Greer said.
"We're obviously going to abide by the decisions of the courts," Greer said.
Peck said the FBI's information-gathering in Las Vegas in December constituted the "deepest data mining that the government had engaged in" related to its expanded powers under the Patriot Act.
The FBI used federal grand jury subpoenas, administrative subpoenas and national security letters to obtain guest lists at Las Vegas hotels as part of security precautions for New Year's Eve.
The requests were part of a broader probe that occurred after the nation went on a high-level terrorism alert in December. The FBI searched for terrorists by going over lists of names of those who used truck and car rental agencies, airlines, hotels and storage units in the Las Vegas Valley as well as Laughlin and St. George, Utah.
Nevada lawmakers, also reviewing the ruling today, said casinos are caught in a post-9/11 dilemma of security vs. privacy.
Rep. Shelley Berkley, D-Nev., today said it was "inappropriately intrusive" to give the FBI broad powers to obtain casino patron information.
Rep. Jon Porter, R-Nev. said lawmakers have a tough job protecting people's privacy and the public's security.
"There's a delicate balance to be met," Porter spokesman Adam Mayberry said.
Sen. John Ensign R-Nev., also would not comment on the opinion specifically, but he said the Patriot Act was built to have periodic reviews.
"Many aspects of the act contain sunset provisions for that very reason so they can be reviewed and altered if necessary," he said.
While Marrero called national security of "paramount value" and said the government "must be empowered to respond promptly and effectively" to threats, he also called personal security equal in importance and "especially prized in our system of justice."
The decision is the second time a judge has ruled unconstitutional part of the Patriot Act, a package of prosecution and surveillance tools passed shortly after the terrorism of Sept. 11, 2001 to help the government battle terrorism.
In January, a federal judge in Los Angeles struck down a section of the act that made it a crime to give "expert advice or assistance" to groups designated foreign terrorist organizations. The judge said the language was too vague, threatening First and Fifth Amendment rights.
American Civil Liberties Union attorney Jameel Jaffer called the latest ruling a "landmark victory, and "a wholesale refutation of excessive government secrecy and unchecked executive power."
Marrero said his ruling blocks the government from issuing new requests for phone and Internet records "in this or any other case," but delayed the injunction by 90 days to allow time for an appeal.
The judge said the law violates the Fourth Amendment because it bars or deters any judicial challenge to the government searches, and violates the First Amendment because its permanent ban on disclosure is a prior restraint on speech.
He noted that the Supreme Court recently said that a "state of war is not a blank check for the president when it comes to the rights of the nation's citizens."
"Sometimes a right, once extinguished, may be gone for good," Marrero wrote.
President Bush has been pushing Congress to renew all of the Patriot Act before it expires next year, arguing that it is one of law enforcement's best tools in preventing another catastrophic terrorist attack.
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