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.


Reader Comments (rss)

(Flattened / Threaded)

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    Hephaestus (profile), Mar 15th, 2013 @ 2:40pm

    Great News

     

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    Anonymous Coward, Mar 15th, 2013 @ 2:53pm

    The government will appeal and the appeal will most likely succeed being as the government does nothing wrong etc. (sarcasm)

     

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    Anonymous Coward, Mar 15th, 2013 @ 2:54pm

    And the terrorists win again. NSLs were a source of national pride for me. How will we continue to be the greatest country ever without NSLs?

     

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    Wally (profile), Mar 15th, 2013 @ 2:56pm

    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.

     

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      Chosen Reject (profile), Mar 15th, 2013 @ 3:27pm

      Re:

      Six Strikes has nothing to do with NSLs. It used to be that copymites would ask the ISPs to correlate IP addresses with subscriber info and hand the copymites the subscriber info. Six strikes asks the ISPs to simply send the warnings to certain IP addresses, no NSL needed.

       

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        Chosen Reject (profile), Mar 15th, 2013 @ 3:31pm

        Re: Re:

        I submitted that too soon. NSLs weren't needed in the first case, but a court usually was (depending on how weak the ISP was and how persuasive the copymite could be). NSLs aren't needed in the latter case either. Six strikes has nothing to do whatsoever with NSLs.

         

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      Anonymous Coward, Mar 15th, 2013 @ 6:57pm

      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.

       

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        Anonymous Coward, Mar 16th, 2013 @ 2:52am

        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)?

         

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          Anonymous Coward, Mar 16th, 2013 @ 4:48pm

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

          "They ruled against NSLs because they were found to usurp the power of the courts."

          Exactly. NSLs usurp the power of the courts to act as a check and balance, thereby infringing on the rights of citizens.

           

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          tqk (profile), Mar 17th, 2013 @ 3:18pm

          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.

           

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            Niall (profile), Mar 18th, 2013 @ 3:57am

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

            But Six Strikes are being retroactively applied to existing ToSs on a unilateral basis.

            Time to start paying those ISPs "up to" the agreed value ;)

             

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          Anonymous Coward, Mar 18th, 2013 @ 3:57am

          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.

           

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    madasahatter (profile), Mar 15th, 2013 @ 3:08pm

    Judicial Pushback

    At least on Judge understands the US Constitution and the Bill of Rights.

     

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      Mason Wheeler, Mar 15th, 2013 @ 6:19pm

      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!"

       

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        Anonymous Coward, Mar 15th, 2013 @ 6:32pm

        Re: Re: Judicial Pushback

        That's what I took away from it as well, more a turf war than a ruling against the suppression of speech.

         

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          Anonymous Coward, Mar 15th, 2013 @ 8:11pm

          Re: Re: Re: Judicial Pushback

          Yeah... but on the other hand, the court can only rule based on the arguments presented. Probably this was selected by the opponents of the NSL's because they figured this was the best way to get the court to agree.

           

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        Valkor, Mar 16th, 2013 @ 1:22am

        Re: Re: Judicial Pushback

        Federalist 51. It's ok that a major consideration is turf war. It keeps one branch or group from steamrolling the others. Since men are not angels, we can use ambition to keep them honest.

         

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        Anonymous Coward, Mar 16th, 2013 @ 2:40am

        Re: Re: Judicial Pushback

        That is the beauty of separation of powers. It actually found a good use for fiefdom building!

         

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        nasch (profile), Mar 16th, 2013 @ 9:21am

        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.

         

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        Anonymous Coward, Mar 17th, 2013 @ 8:16am

        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.

         

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    Anonymous Coward, Mar 15th, 2013 @ 3:12pm

    Shocks comes in pairs.

    http://www.wired.com/threatlevel/2013/03/cia-drones-foia/

    UCLA won its case and a judge ordered the CIA to disclose the information requested or something like that.

     

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    madasahatter (profile), Mar 15th, 2013 @ 3:14pm

    Judicial Pushback

    At least on Judge understands the US Constitution and the Bill of Rights.

     

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    Anonymous Coward, Mar 15th, 2013 @ 3:34pm

    Finally, a victory for democracy over totalitarian dictatorship!
    Maybe next we can start working on getting rid of that whole "secret interpretations of laws" thing, as well as the related "government using smartphone data to spy on everyone without oversight" issue.

     

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    Rekrul, Mar 15th, 2013 @ 3:36pm

    Correct me if I'm wrong, but it looks like the only portion of the NSLs that the judge really had a problem with was the gag order.

     

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      Anonymous Coward, Mar 15th, 2013 @ 3:55pm

      Re:

      It's not perfect but hey if they do come at you now you can throw a fucking fit without being tossed in Gitmo for the next 900 years.

       

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      nasch (profile), Mar 16th, 2013 @ 9:23am

      Re:

      Agreed, the feds will be much less likely to abuse these regularly if their use is made public. On the other hand, if the targets of the NSLs decide to just shut up and play along, we will have gotten nowhere.

       

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    Claire Rand, Mar 15th, 2013 @ 3:54pm

    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

     

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    Anonymous Coward, Mar 15th, 2013 @ 4:09pm

    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.

     

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      nasch (profile), Mar 16th, 2013 @ 9:24am

      Re:

      The U.S. Government has never proven to Americans that it can be trusted to violate our privacy and constitutional rights.

      I disagree! But I think you didn't write exactly what you meant. Maybe you mean "...can be trusted not to violate..."?

       

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    Anonymous Coward, Mar 15th, 2013 @ 4:56pm

    Oh noes, they broke the first rule of the club fight.

     

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    Anonymous Coward, Mar 15th, 2013 @ 5:50pm

    This is the Ninth a lot of what they do gets over turned.

     

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    Thomas (profile), Mar 15th, 2013 @ 6:15pm

    Not a chance..

    of the ban standing. The NSLs will continue, even if it goes to the SCOTUS because the DOJ spooks will put pressure on the supremes to do as they are told or risk a trip to Gitmo.

     

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      Anonymous Coward, Mar 16th, 2013 @ 2:56am

      Re: Not a chance..

      That sounds like a good way to get entire departments of the spooks declared unconstitutional which would be truly glorious. Judges aren't exactly known for taking kindly to being screwed with much less ordered around.

       

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    special-interesting (profile), Mar 15th, 2013 @ 6:43pm

    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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    Anonymous Coward, Mar 17th, 2013 @ 1:50am

    ham's occuring at your place too ?

    and if a specified official has certified that such a ham "may" occur,

    nice to see your courts keeping up with proofreading.

     

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    Anonymous Coward, Mar 17th, 2013 @ 7:25pm

    Alex Jones is warning of something like SOPA to ban websites that disagree with the government view of things.

    http://www.infowars.com/if-gun-control-passes-expect-free-speech-control-and-the-banning- of-websites-books-and-art

     

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      Niall (profile), Mar 18th, 2013 @ 4:01am

      Re:

      Infowars? Pah! Talk about a ridiculous slippery slope. Most of the West has gun control, and not even a fraction of the 'free speech censorship' that these guys fantasise about in ther persecution fapping.

      Seriously, you might as well go to Spearhead for info on womens' rights issues, or the KKK for info on minorities...

       

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    Ninja (profile), Mar 18th, 2013 @ 4:13am

    Epic win. Hopefully this ruling will survive up to the highest stances...

     

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