Judge Rules National Security Letters Unconstitutional

As I reported last week, Google began to expose the government’s tactics by bringing to light how they were being given national security letters (NSL), but then also given gag orders concerning them. U.S. District Judge Susan Illston said the laws violate the First Amendment and the separation of powers principles and ordered the government to stop issuing the secretive letters or enforcing their gag orders. In doing so, she struck down a set of laws which allow the FBI to issue so-called national security letters to companies demanding customer information.

The Wall Street Journal reports,

“The government’s gags have truncated the public debate on these controversial surveillance tools,” said Matt Zimmerman, a senior staff attorney with the Electronic Frontier Foundation, which represents the company. “Our client looks forward to the day when it can publicly discuss its experience.”

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The chief executive of one phone company profiled in the Journal’s story, Working Assets Inc., told the Journal at the time that the company thought there was “a tension between privacy and the legitimate security needs of the country.” “We think it is best to resolve this through grand jury or judicial oversight,” the CEO, Michael Kieschnick, said.

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The judge in the California case agreed with the company’s argument that the nondisclosure provisions of the national security letter law violate the First Amendment protection of free speech. “The pervasive use of nondisclosure orders … creates too large a danger that speech is being unnecessarily restricted,” Judge Illston wrote in her order. The judge also said that the law “impermissibly attempts to circumscribe a court’s ability to review the necessity of nondisclosure orders,” violating the principle that allows the judicial branch to review laws and executive actions.

Fox News adds,

The FBI almost always bars recipients of the letters from disclosing to anyone — including customers — that they have even received the demands, 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.

The counter-terrorism agents of the FBI began to issue these types of letters after the passage of the USA Patriot Act was passed by Congress following the September 11, 2001 attacks. They did not require a judge’s approval.

“The government has a strong argument that allowing the government to prohibit recipients of NSL’s from disclosing the specific information sought in NSL’s to either the targets or the public is generally necessary to serve national security in ongoing investigations,” Illston wrote.

“However, the government has not shown that it is generally necessary to prohibit recipients from disclosing the mere fact of their receipt of NSLs,” she concluded.

The ruling comes from a 2011 lawsuit filed by the Electronic Frontier Foundation on behalf of an unnamed telecommunications company which received one of the letters.

“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.”

Judge Illston wrote of her concern by the limited powers that judges have to lift gag orders. She wrote that they can eliminate a 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.”

This provision also violated the Constitution, primarily because it blocks meaningful judicial review.

In her ruling, Judge Illston ordered the government to stop enforcing the secrecy orders, although it could be overturned on appeal.

Ultimately Illston ruled on Friday that it was not the courts to deal with the matter of the letters, but Congress.

In 2011, the FBI made 16,511 NSL requests for information regarding 7,201 people.

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