Judicial Notebook

The Patriot Act (18 U.S.C. ß 2709) permits the FBI to issue subpoenas against agents who manage communication networks (e.g., Internet service providers and telephone companies) and requires the recipients to produce customer records when the FBI determines that those records are "relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities."

The resulting national security letters (NSLs) are unique administrative subpoenas because the government orders the agents to carry out the subpoenas in secrecy without telling anyone that the FBI has issued an NSL.

A challenge to the Patriot Act

In Doe v. Ashcroft (2004 WL 2185571 [S.D.N.Y.]), the U.S. District Court in the Southern District of New York struck down ß 2709 of the Patriot Act as a violation of the First and Fourth Amendments to the U.S. Constitution. The case arose when John Doe received an NSL and filed suit in conjunction with the American Civil Liberties Union (ACLU) and the ACLU Foundation to quash the subpoena.

With regard to the First Amend-ment issue, the District Court ruled "individual Internet subscribers have a right to engage in anonymous Internet speech, though anonymity may be trumped in a given case by other concerns" (page 27).

The judge went on to say that there are circumstances in which individuals' rights to anonymous speech and association must give way to the government's interest to protect its citizens against the "actions of terrorists and clandestine intelligence activities." However, the process requires "safeguards of some judicial review to ensure that if an infringement of those rights is asserted, they are adequately protected through fair process in an independent neutral tribunal." The court concluded that "because the necessary procedural protections are wholly absent" (page 29)--i.e., the application of ß 2709 of the Patriot Act requires no judicial review--the statute was in violation of the First Amendment.

In addition and perhaps more interesting from the perspective of research psychologists, the District Court also ruled that ß 2709 of the Patriot Act as applied violates the Fourth Amendment guarantee against unlawful search and seizure.

In two prior cases (United States v. Morton Salt Co., 338 U.S. 632, [1950] and Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, [1946]), the U.S. Supreme Court held that administrative subpoenas need only be reasonable, but that the recipient of an administrative subpoena must be able to "obtain judicial review of the reasonableness of the demand prior to suffering penalties for refusing to comply" (See v. City of Seattle, 387 U.S. 541, 544-45, [1967]).

District Judge Marrero acknowledged that within the constraints of the law of administrative subpoenas (as argued by the government in Doe v. Ashcroft), recipients of NSLs could indeed obtain the counsel of an attorney and file suits to quash subpoenas. However, he went on to state that, "Objectively viewed, it is improbable that an FBI summons invoking the authority of a certified investigation to protect against international terrorism or clandestine intelligence activities, and phrased in tones sounding virtually as biblical commandment, would not be perceived with some apprehension by an ordinary person and therefore elicit passive obedience from a reasonable NSL recipient." (page 21)

He concluded that because the Patriot Act does not explicitly name judicial review as a process for testing the "reasonableness" of an NSL, and because there are current bills in Congress that address this issue, the current language of ß 2709 as applied violates the Fourth Amendment.

The need for psychological research

This case, Doe v. Ashcroft, will rise through the federal appellate courts testing the District Court's conclusion. The substantive issue that the courts may ultimately face is the reasonableness of NSLs with and without formal judicial review.

Psychologists can advance the scientific understanding of coercion in the legal system by testing the responses of potential NSL recipients with and without notice of judicial review to administrative subpoenas authorized under the current and proposed Patriot Act revisions. At the same time, research examining this issue could assist the courts in finding the careful balance between protecting individuals' rights against unlawful search and seizures while permitting the FBI to conduct effective investigations of terrorist activities.

Studies that produce results that demonstrate effective requests to obtain compliance with NSLs while protecting the Fourth Amendment rights of recipients can contribute meaningfully to the judicial system's analysis of the Patriot Act.

"Judicial Notebook" is a project of APA's Div. 9 (Society for the Psychological Study of Social Issues).