dslreports logo
site
spacer

spacer
 
   
spc
story category
Judge Rules National Security Letters Unconstitutional
Use of Letters, Gag Orders Blocked Pending Appeal
by Karl Bode 09:03AM Monday Mar 18 2013
We've covered for several years the growing use (or in a significant number of proven cases, the abuse) of National Security Letters. NSLs allow the government to obtain records from ISPs (or banks and other companies), then involve a gag order against the ISP with no judicial review. That's of course fairly open to abuse, given the FBI could obtain any records they want, nobody could talk about it, and nobody could review it.

Not too surprisingly then, a government investigation found 60% of FBI’s NSLs failed to conform to Justice Department rules, and another 22% involved improper requests or unauthorized information collection. One individual in particular, Nicholas Merrill of Calyx Internet Access, has been waging a rather fantastic war against these letters, and was even sued by the DOJ for questioning the practice's legitimacy after he was "gagged" for years.

With that as a backdrop, a Federal Judge rather surprisingly ruled last week that the use of such letters is unconstitutional. The ruling, which is stayed for 90 days for appeal, requires the government stop issuing NSLs and cease enforcing the gag provision in this or any other case that used the letters.

"We are very pleased that the court recognized the fatal constitutional shortcomings of the NSL statute," said the EFF, who played a key role in the case. "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."

view:
topics flat nest 
pawpaw

join:2004-05-05
Greenville, SC

EFF, the NRA of the 21st Century

If you value your liberty, join the EFF.
Crookshanks

join:2008-02-04
Binghamton, NY

join both

Four boxes to be used in defense of liberty, in this order: Soap box, ballot box, jury box, ammo box.

The EFF only has two of those in its arsenal. The NRA has three. The people have all four, at least the ones that aren't too apathetic to drag themselves away from American Idol long enough to go vote...
talz13

join:2006-03-15
Avon, OH

1 recommendation

Re: join both

said by Crookshanks:

at least the ones that aren't too apathetic to drag themselves away from American Idol long enough to go vote...

They do vote! By the millions! Many of them vote tens or hundreds of times!

Oh wait, you mean voting in an election... Then, no, they probably don't go out and vote

dnoyeB
Ferrous Phallus

join:2000-10-09
Southfield, MI
kudos:1
Reviews:
·Comcast

1 recommendation

The analogy fails because the EFF doesn't work for the interests of ATT, IBM, Microsoft, etc. In fact, they are often found on opposite sides of a court room.

Whereas the NRA defends profit not liberty. It doesn't cross gun manufacturers.
--
dnoyeB
"Then said I, Wisdom [is] better than strength: nevertheless the poor man's wisdom [is] despised, and his words are not heard. " Ecclesiastes 9:16

jap
Premium
join:2003-08-10
038xx

Re: join both

said by dnoyeB:

The analogy fails

Agreed. The EFF works in broad foundational concepts of law & society much like the ACLU and remain unconcerned with any one single industry or issue. NRA concerns are extremely narrow: guns.

jap
Premium
join:2003-08-10
038xx

Re: EFF, the NRA of the 21st Century

said by pawpaw:

If you value your liberty, join the EFF.

The EFF is indeed an impressive org. They plod along at the foundational level fighting the good fight relatively uncelebrated. I respect that.

jseymour

join:2009-12-11
Waterford, MI

This Is Big

This is a big win for the U.S. Constitution and The People of the United States of America. It's about time the federal government was reminded it's not the unfettered power it's lately believed itself to be.

Kudos to Judge Susan Illston.

Jim
Crookshanks

join:2008-02-04
Binghamton, NY

Re: This Is Big

The battle is won, but the war drags on until DoJ stops appealing it or SCOTUS makes a similar judgment.

One can never predict how the nine will vote, but if I was a betting man I'd say you've got six or seven justices that would frown on this practice, provided they get a case they can make a relevant ruling on.

Squire James

@embarqhsd.net

Re: This Is Big

This is likely the first skirmish of the first battle, but sometimes winning the first skirmish is indeed a big deal.

Realistically, this will probably result in these "requests" being harder to place and/or subject to more disclosure rather than eliminated entirely. The more we can get the better, of course, but to some extent cops should be allowed to be cops...

FFH
Premium
join:2002-03-03
Tavistock NJ
kudos:5
Court of appeals in Calif may even let this stand. But when it gets to USSC, this ruling dies a quick death.

cdru
Go Colts
Premium,MVM
join:2003-05-14
Fort Wayne, IN
kudos:7

2 recommendations

In related news, Judge Susan Illston has been mentioned as the target of an investigation in aiding terrorism, treason, tax evasion, illegal immigration, child pornography, weapon charges, espionage, animal cruelty, smuggling, running a meth lab, and several overdue library books. Her current case load has been assigned to other more government-friendly judges while she deals with these personal issues.
CXM_Splicer
Looking at the bigger picture
Premium
join:2011-08-11
NYC
kudos:2

Re: This Is Big

Overdue library books is no joke. If they get her on that, I fully expect her decision to be reversed.

Twaddle

@sbcglobal.net

Re: This Is Big Coincidence?

That will teach this judge to rule honestly!

cabana
Department of Adjustments
Premium,Mod
join:2000-07-07
New York, NY

1 recommendation

The liberties of a people never were, nor ever will be, secure, when the transactions of their rulers may be concealed from them. (Patrick Henry -- you know -- the give me liberty or death dude)
Kearnstd
Space Elf
Premium
join:2002-01-22
Mullica Hill, NJ
kudos:1
it is a good ruling but the SCOTUS will shoot it down.

however if anon ever got their hands on the NSL records from companies I would not see it as bad if they made them all public.
--
[65 Arcanist]Filan(High Elf) Zone: Broadband Reports

cdru
Go Colts
Premium,MVM
join:2003-05-14
Fort Wayne, IN
kudos:7

Re: This Is Big

said by Kearnstd:

however if anon ever got their hands on the NSL records from companies I would not see it as bad if they made them all public.

Honestly I bet a good portion of the NSL are boring and mundane if you knew the truth why they were requested. The people or organizations they were requested for probably would feel their privacy was invaded, and they would be right, but overall most of it will be a lot of hoopla about nothing. It doesn't excuse it. And I'm not condoning it. But just stating fact.

Hoover's FBI files had dirt on a lot of people, but it also had common knowledge, ho-hum, and who-cares information of many other people too.
jjeffeory

join:2002-12-04
USA

Re: This Is Big

You're not stating fact, you're stating your opinion. If it's so boring and mundane, why is it being requested at all; why is the information being requested in this manner?

cdru
Go Colts
Premium,MVM
join:2003-05-14
Fort Wayne, IN
kudos:7

Re: This Is Big

Because its easier to go on fishing expeditions with long shots when you don't have to go through those pesky judges. There have been hundreds of THOUSANDS NSL issued. And despite all those fishing expeditions, how many convictions or even real charges have resulted? If there was something exciting about those letters, you can be damn siure SOMETHING would have resulted in the war against terror/drugs/cause of the moment.
CXM_Splicer
Looking at the bigger picture
Premium
join:2011-08-11
NYC
kudos:2

Re: This Is Big

Agreed, sort of. If there was anything legally 'interesting' they would have no problem going through legitimate existing channels. I would offer though that what they are fishing for could still be completely unknown to the general public. Our government certainly loves its secrecy (especially as of late). I could easily imagine a modern day House Un-American Activities Committee or some crazy pre-crime detection unit operating in complete secrecy. I mean, if you aren't even allowed to discuss the letter with your attorney, there is something nefarious (on the government's part) going on.

intok

join:2012-03-15
If this is the case then why are they going fishing at all? Let alone that they require that it seems nobody anywhere can get info on just what they are up to.

cdru
Go Colts
Premium,MVM
join:2003-05-14
Fort Wayne, IN
kudos:7

Re: This Is Big

said by intok:

If this is the case then why are they going fishing at all?

To catch a fish?

Honestly I don't think the information they are seeking is completely random. They aren't just picking a name out of a hat and looking in to people. Obviously they are going to have people that they are investigating, either for specific crimes or suspicious activities. Those people deal with businesses, organizations, and other individuals as just part of their daily lives, as well as potentially as what they are being investigated for.

Those dealings themselves may not be illegal, but they may have evidence that goes towards a case. For instance, someone running a grow house may have a very high electric bill from operating the lighting. The electric company would have records of what the properties electrical consumption is. If it's multiple times the average consumption of the average house, then that can be additional evidence to support a warrant.

In the case of an ISP, finding out who they are emailing, what websites they visit, how much they are downloading, are they using VPN and encrypting data, who pays their bills and from what cards/accounts, etc all could be found out. I don't know what they are requesting. No one really does except the requesting organization and whoever the NSL was addressed to. Maybe they find something...or maybe they find nothing useful. Sometimes you catch a fish, sometimes you go home empty handed.

This isn't condoning what they are doing by any means. But if you can't see a reason why a law enforcement or intelligence agency wouldn't want to go on fishing expeditions to follow potential leads, then you need to open your eyes more.

FFH
Premium
join:2002-03-03
Tavistock NJ
kudos:5

Re: This Is Big

said by cdru:

This isn't condoning what they are doing by any means. But if you can't see a reason why a law enforcement or intelligence agency wouldn't want to go on fishing expeditions to follow potential leads, then you need to open your eyes more.

And I'd be willing to bet a lot of these NSLs are for financial records of people moving around a lot of money internationally(incoming and outgoing) and are being investigated for ties to terrorism. An NSL stops the tipping off of these people that someone may be on to them.