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View Full Version : Federal Judge Finds National Security Letters Unconstitutional, Bans Them




sailingaway
03-15-2013, 06:37 PM
Ultra-secret national security letters that come with a gag order on the recipient are an unconstitutional impingement on free speech, a federal judge in California ruled in a decision released Friday.

U.S. District Judge Susan Illston ordered the government to stop issuing so-called NSLs across the board, in a stunning defeat for the Obama administration’s surveillance practices. She also ordered the government to cease enforcing the gag provision in any other cases. However, she stayed her order for 90 days to give the government a chance to appeal to the Ninth Circuit Court of Appeals.

“We are very pleased that the Court recognized the fatal constitutional shortcomings of the NSL statute,” said Matt Zimmerman, senior staff attorney for the Electronic Frontier Foundation, which filed a challenge to NSLs on behalf of an unknown telecom that received an NSL in 2011. “The government’s gags have truncated the public debate on these controversial surveillance tools. Our client looks forward to the day when it can publicly discuss its experience.”

The telecommunications company received the ultra-secret demand letter in 2011 from the FBI seeking information about a customer or customers. The company took the extraordinary and rare step of challenging the underlying authority of the National Security Letter, as well as the legitimacy of the gag order that came with it.

Both challenges are allowed under a federal law that governs NSLs, a power greatly expanded under the Patriot Act that allows the government to get detailed information on Americans’ finances and communications without oversight from a judge. The FBI has issued hundreds of thousands of NSLs over the years and has been reprimanded for abusing them — though almost none of the requests have been challenged by the recipients.

After the telecom challenged the NSL, the Justice Department took its own extraordinary measure and sued the company, arguing in court documents that the company was violating the law by challenging its authority.

The move stunned EFF at the time.

“It’s a huge deal to say you are in violation of federal law having to do with a national security investigation,” Zimmerman told Wired last year. “That is extraordinarily aggressive from my standpoint. They’re saying you are violating the law by challenging our authority here.”

The case is a significant challenge to the government and its efforts to obtain documents in a manner that the EFF says violates the First Amendment rights of free speech and association.

In her ruling, Judge Illston agreed, saying that the NSL nondisclosure provisions “significantly infringe on speech regarding controversial government powers.”

She noted that the telecom had been “adamant about its desire to speak publicly about the fact that it received the NSL at issue to further inform the ongoing public debate” on the government’s use of the letters.

She also said that the review process for challenging an order violated the separation of powers. Because these provisions cannot be separated from the rest of the statute, Illston ruled that the entire statute was unconstitutional.

Illston found that although the government made a strong argument for prohibiting the recipients of NSLs from disclosing to the target of an investigation or the public the specific information being sought by an NSL, the government did not provide compelling argument that the mere fact of disclosing that an NSL was received harmed national security interests.

A blanket prohibition on disclosure, she found, was overly broad and “creates too large a danger that speech is being unnecessarily restricted.” She noted that 97 percent of the more than 200,000 NSLs that have been issued by the government were issued with nondisclosure orders.

more: http://www.wired.com/threatlevel/2013/03/nsl-found-unconstitutional/

sailingaway
03-15-2013, 06:40 PM
Here is reuters on it: http://www.reuters.com/article/2013/03/16/us-national-security-surveillance-idUSBRE92F00B20130316

paulbot24
03-15-2013, 06:51 PM
Excellent news!

PaleoPaul
03-15-2013, 08:17 PM
Thankfully there are still some judges out there that are doing what they are called to do.

sailingaway
03-15-2013, 08:55 PM
Thankfully there are still some judges out there that are doing what they are called to do.

Yeah. Unfortunately the Supreme Court isn't lately a venue for them.

tangent4ronpaul
03-16-2013, 12:24 AM
CBS: http://www.cbsnews.com/8301-201_162-57574694/judge-rules-secret-fbi-letters-unconstitutional/

Judge rules secret FBI letters unconstitutional

A federal judge has ruled that the FBI's practice of issuing so-called national security letters to banks, phone companies and other businesses is unconstitutional, saying the secretive demands for customer data violate the First Amendment.

The FBI almost always bars recipients of the letters from disclosing to anyone — including customers — that they have even received the demands, U.S. District Judge Susan Illston said in the ruling released Friday.

The government has failed to show that the letters and the blanket non-disclosure policy "serve the compelling need of national security," and the gag order creates "too large a danger that speech is being unnecessarily restricted," the San Francisco-based Illston wrote.

FBI counter-terrorism agents began issuing the letters, which don't require a judge's approval, after Congress passed the USA Patriot Act in the wake of the Sept. 11, 2001, attacks.

The case arises from a lawsuit that lawyers with the Electronic Frontier Foundation filed in 2011 on behalf of an unnamed telecommunications company that received an FBI demand for customer information.

"We are very pleased that the court recognized the fatal constitutional shortcomings of the NSL statute," EFF lawyer Matt Zimmerman said. "The government's gags have truncated the public debate on these controversial surveillance tools. Our client looks forward to the day when it can publicly discuss its experience."

Illston wrote that she was also troubled by the limited powers judges have to lift the gag orders.

Judges can eliminate the gag order only if they have "no reason to believe that disclosure may endanger the national security of the United States, interfere with a criminal counter-terrorism, or counterintelligence investigation, interfere with diplomatic relations, or endanger the life or physical safety of any person."

That provision also violated the Constitution because it blocks meaningful judicial review.

Illston ordered the FBI to cease issuing the letters, but put her order on hold for 90 days so the U.S. Department of Justice can appeal to the 9th U.S. Circuit Court of Appeals.

Illston isn't the first federal judge to find the letters troubling. The 2nd U.S. Circuit Court of Appeals in New York also found the gag order unconstitutional, but allowed the FBI to continue issuing them if it made changes to its system such as notifying recipients they can ask federal judges to review the letters.

Illston ruled Friday that it's up to Congress, and not the courts, to tinker with the letters.

In 2007, the Justice Department's inspector general found widespread violations in the FBI's use of the letters, including demands without proper authorization and information obtained in non-emergency circumstances. The FBI has tightened oversight of the system.

The FBI made 16,511 national security letter requests for information regarding 7,201 people in 2011, the latest data available. The FBI uses the letters to collect unlimited kinds of sensitive, private information like financial and phone records.

-t