The reality of the ECPA

If you had actually read Judge Marrero’s decision, your Oct. 1 editorial would have been… If you had actually read Judge Marrero’s decision, your Oct. 1 editorial would have been accurate. You’d have known that the case concerned the Electronic Communications Privacy Act of 1986, not the PATRIOT Act. Judge Marrero decided that 2709 of the ECPA is “facially unconstitutional.” While the PATRIOT Act did amend 2709(b) of the ECPA, that revision had nothing to do with Marrero’s decision.

Sections a and b “[authorize] the FBI to issue [National Security Letters] seeking information from wire and electronic communication service providers.” Judge Marrero ruled 2709(c) of the ECPA unconstitutional, because it provides for secrecy and no judicial review in issuing NSLs. Congress amended the ECPA in 1993 to include foreign powers. The PATRIOT Act amended Section b to replace the foreign power requirement with “a broad standard of relevance to international terrorism.”

The PATRIOT Act neither created nor authorized the NSLs. Judge Marrero mentions the PATRIOT Act briefly while discussing the ECPA’s legislative history, but never in the sections ruling the ECPA unconstitutional. Hundreds of NSLs have been issued since October 2001, and Marrero adds: “Because