Shocker: Court Says National Security Letters Are Unconstitutional, Bans Them

from the didn't-see-that-coming dept

Well here’s a surprising (and important) bit of late-Friday-breaking news. A federal court has ruled that national security letters (NSLs) are unconstitutional, and banned their use. For years we’ve covered the use and abuse of NSLs, which basically allow law enforcement to demand (with almost no oversight) information from service providers, and which include a total gag order, entirely blocking people from talking about the letters. These NSLs are used all the time, and pretty much every time anyone looks into the use of NSLs, there’s an admission that they’re abused, but little has been done to fix that. Until now.

We wrote about this particular case last year, when the DOJ took the extraordinary step of suing a telco for daring to question whether or not NSLs were legal, claiming that its failure to hand over the info violated the law. The court disagreed.

The Court finds that, as written, the statute impermissibly attempts to circumscribe a court’s ability to review the necessity of nondisclosure orders. As noted above, while not a “classic” prior restraint or content-based speech restriction, the NSL nondisclosure provisions significantly infringe on speech regarding controversial government powers. As such, the Court can only sustain nondisclosure based on a searching standard of review, a standard incompatible with the deference mandated by Sections 3511(b) and (c). As written, the statute expressly limits a court’s powers to modify or set aside a nondisclosure order to situations where there is “no reason to believe” that disclosure “may” lead to an enumerated harm; and if a specified official has certified that such a ham “may” occur, that determination is “conclusive.” The statute’s intent — to circumscribe a court’s ability to modify or set aside nondisclosure NSLS unless the essentially insurmountable standard “no reason to believe” that a harm “may” result is satisfied — is incompatible with the court’s duty to searchingly test restrictions on speech. See, e. John Doe, Inc. v. Mukasey, 549 F.3d at 883 (“The fiat of a governmental official, though senior in rank and doubtless honorable in the execution of official duties, cannot displace the judicial obligation to enforce constitutional requirements. ‘Under no circumstances should the Judiciary become the handmaiden of the Executive.’

The remedy is to bar the government from issuing any NSLs or enforcing the nondisclosure gag order in any issued NSLs… but, knowing that the government is going to appeal, it has given a window for that to happen. So, we’ve got a long way to go before we see what happens here, but make no mistake, this is a huge ruling pushing back on a massive abuse of power by the government.

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Comments on “Shocker: Court Says National Security Letters Are Unconstitutional, Bans Them”

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42 Comments
Wally (profile) says:

Good..now we could try to find how this will apply to Six Strikes:

Mike Mansick, just curious as to what you think about what I am about to point out.

I think this ruling may have a wonderfully significant negative impact on Six Strikes. The MPAA and RIAA find out what you have been downloading through a BitTorrent Client for Six Strikes. I have a gut feeling this is a process very similar to an NLS. They ask for your personal client information from your ISP citing that they have to look at it to make sure the content you downloaded is not illegal.

Anonymous Coward says:

Re: Response to: Wally on Mar 15th, 2013 @ 2:56pm

I just don’t see how the 2 are related at all (at least not by this case). If you read the ruling again, you’ll see that the court didn’t rule NSLs unconstitutional because they were found to infringe on the rights of citizens. They ruled against NSLs because they were found to usurp the power of the courts. This isn’t a vindication; it’s a turf war.

Anonymous Coward says:

Re: Re: Response to: Wally on Mar 15th, 2013 @ 2:56pm

I just don’t see how the 2 are related at all (at least not by this case). If you read the ruling again, you’ll see that the court didn’t rule NSLs unconstitutional because they were found to infringe on the rights of citizens. They ruled against NSLs because they were found to usurp the power of the courts. This isn’t a vindication; it’s a turf war.

Isn’t removing the court from the process pretty much what the Six Strikes are all about (unless you pay up to challenge your case, which is enough of a deterrent for most people)?

tqk says:

Re: Re: Re: Response to: Wally on Mar 15th, 2013 @ 2:56pm

Isn’t removing the court from the process pretty much what the Six Strikes are all about …

Yes, but you accept that arrangement when you accept your ISP’s Terms of Service. Whether anyone actually reads ToSs or has any choice in alternative ISPs if they don’t accept is another matter.

Anonymous Coward says:

Re: Re: Re: Response to: Wally on Mar 15th, 2013 @ 2:56pm

the point is that the NSLs actually had a provision where if a government official said disclosure may cause harm, then the court would be forced to rule in favour of non-disclosure( they cannot even review if the official is being honest. I very much doubt ANY NSLs would not have the official in question saying it could harm someone). THAT is what the courts are objecting to, the effective muzzling of judicial review of NSLs, not the letters as such.

Mason Wheeler (profile) says:

Re: Judicial Pushback

Maybe I’m just a bit on the cynical side, but this doesn’t read like a judge standing up for Truth, Freedom and the Principles Of Democracy to me.

If you look at what the judge is actually saying, instead of focusing entirely on the effect his ruling has, it looks clear that this is a turf war. The entire thing is about judicial oversight. “What? You think you can limit the power of the courts? Waitasec… I’m the court system! You can’t cut me out of this! I don’t like that, so you’d better stop doing it!”

David says:

Re: Re: Re: Judicial Pushback

Sure, it is a turf war, but it is the right of the citizen to be tried by a jury of his peers and with full access to the evidence and due process which actually makes this a turf war.

Actually, the same goes for the “plea deals” invention by the Department of “Justice” which makes citizens pay a premium in money or incarceration time if they want to take a chance at exerting their Constitutional rights.

The courts are probably not fighting back over that because they are overworked anyhow and, well, they are dependent on the Department of “Justice”.

nasch (profile) says:

Re: Re: Judicial Pushback

If you look at what the judge is actually saying, instead of focusing entirely on the effect his ruling has, it looks clear that this is a turf war. The entire thing is about judicial oversight. “What? You think you can limit the power of the courts?

I read it as “you think you can limit the power of the courts to protect Constitutional rights?”

” the NSL nondisclosure provisions significantly infringe on speech regarding controversial government powers. As such, the Court can only sustain nondisclosure based on a searching standard of review, a standard incompatible with the deference mandated by Sections 3511(b) and (c). “

The courts need to conduct this high standard of review in these cases because of the 1st amendment issues involved, not just because they’re on a power trip.

Anonymous Coward says:

Re: Re: Judicial Pushback

” it looks clear that this is a turf war.”

But that’s kinda how the constitution set it up. One branch of government can not have free reign without the checks and balances of another branch. The court is simply asserting its authority to check and balance another branch of government, that’s its ‘turf’ or responsibility so to speak. IOW, the court is simply doing its job, as intended. It’s much better to have ‘turf wars’ between different branches of governments checking and balancing each other than to simply have one branch of government doing whatever it wants with no oversight or resistance from another branch whatsoever.

Claire Rand says:

Can we have that judge in the UK?

Guessing this will go the way of proving the is no sore loser like a nation state when it comes to seeing how high the dummy goes.

UK law is riddled with this sort of thing trying to get round judges doing horrible things like making judgements.

This will only become more common as what get reffered to as “plebs” in the UK on line and discover a whole world of stuff going on the mainstream channels don’t carry..

Get stuff like this on arsebook, let people know this sort of stuff is going on, I doubt you will get an ACTA level of response, but knowledge is a powerful thing

Anonymous Coward says:

How much do you want to bet that the federal appeals courts are going to grant an appeal to the government because they think the government is violating their constitutional rights for their benefit.

The U.S. Government has never proven to Americans that it can be trusted to violate our privacy and constitutional rights. Not only did the NSLs and gag orders grant the government unprecedented power but it also removed the ability for anyone to challenge the constitutionality of such powers.

We’re simply seeing the rise of a new dictator. Especially given the statement that Harry reid issued earlier this week declaring that he plans on finding a way to subvert Congress and the Republicans because Republicans aren’t the “yes men” that Democrats have long given Obama since 2009.

special-interesting (profile) says:

NSL unconstitutional?

Such awareness would prohibit abuse. (Of which NSL’s abuse is (reference needed) un-deniable. Please award jail terms.) Will this judgment stand the review of higher courts? (No comment.)

I would love to see some public scrutiny of NSL’s. It would be nice that NLS were rare and only used for true terrorist activities. (But. What is the definition of abuse anyway?) What is judicial review?

Individual privacy. Have you been promised something like this?

What a concept. Are you a victim? Trust???!!!!

Few times am I thrown on the fires of democracy. Ouch! (Good topic.)

Dose bureaucracy care about the pain your suffer? No! Die and bleed as you will.

I have mentioned the complex involvement when government agencies participate in lobbying.

Note: UK law is separate from USA law. (Good luck!)

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