Court Says National Security Letters Are Now Constitutional Under USA Freedom Act

from the time-to-appeal dept

We've written quite a lot about National Security Letters (NSLs) over the years. This widely abused tool allowed the Justice Department/FBI to issue simple letters (technically administrative subpoenas) demanding information from companies with no prior judicial review -- and frequently with a perpetual gag order, so that a company can't even say that it had received an NSL. The FBI hands these out by the dozens. Back in 2013, there was a somewhat surprising, but important, district court ruling in California saying that national security letters were unconstitutional, and that legislation was needed to fix them.

The government appealed -- and while that appeal was going on, Congress passed the USA Freedom Act, which included some modifications to the NSL provisions in the PATRIOT Act. Based on that, the 9th Circuit appeals court sent the case back down to the district court to review based on the new law. And, unfortunately, in a newly unsealed opinion (from the end of March), Judge Susan Illston found National Security Letters to now be constitutional. As Illston notes, under the old NSL rule, courts were limited in being able to review NSLs. However, under the version amended by the USA Freedom Act, there is at least some potential for judicial review, and that now makes them constitutional in the eyes of the court:
The Court concludes that as amended, section 3511 complies the constitutional requirements and curses the deficiencies previously identified by this Court. Section 3511 no longer contains the "essentially insurmountable" standard providing that a court could modify or set aside a nondisclosure requirement only if the court found there was "no reason to believe" that disclosure may result in enumerated harm. The government argues, and the Court agrees, that in the USAFA, Congress implicitly ratified the Second Circuit's interpretation of section 3511 as "plac[ing] on the Government the burden to persuade a district court that there is a good reason to believe that disclosure may risk one of the enumerated harms, and that a district court, in order to maintain a nondisclosure order, must find that such a good reason exists."...
The Court rejected the argument, presented by the EFF which brought the case, that even this new standard is unconstitutional because it remains incompatible with the First Amendment in gagging speech not based on necessity, but rather on the mere possibility of harm. The Court doesn't buy it, though, saying that since the court can now review any NSL gag order, it's okay.

The EFF, as you might imagine, is not happy about this and will be appealing to the 9th Circuit, where the case had been before, prior to the USA Freedom Act pushing it back down.
In its new order in our cases, the district court acknowledged that USA FREEDOM’s kludgy reciprocal notice procedure does not live up to the high First Amendment standards in Freedman, but it still called this new procedure good enough. That’s because the court agreed with the Second Circuit that NSLs are not “classic prior restraints” because they do not gag “those who customarily wish to exercise rights of free expression,” such as movie exhibitors and book publishers. This might have seemed plausible when the Second Circuit first wrote it in 2008, as it was less common for companies to speak publicly about government requests for customer information.

But these days, after the immense public debate caused by the Snowden revelations, service providers regularly publish transparency reports about government data requests, and companies like Apple, Microsoft and Google engage in public fights against overbroad requests and gag orders. Users are very concerned about the privacy and security of their data held by these companies. And contrary to the court’s assumption, many providers—like our clients—want to talk about these requests.

But even if it were true that gagged communications providers aren’t “classic speakers,” NSLs are classic prior restraints. The First Amendment has never reserved its highest speech protections for only the most talkative—just the opposite, in fact. Prior restraints arise when the government preemptively tells someone they cannot engage in speech, which is exactly what NSL gag orders do.
The EFF does note that there is a silver lining in this ruling, in that the gag order for one of its clients does not meet the new standard, meaning that, so long as the DOJ does not appeal the ruling, one of the anonymous EFF clients may be able to reveal who they are and that they received an NSL years ago...

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  • identicon
    Anonymous Coward, 22 Apr 2016 @ 11:50am

    Is this the bastard child of shrink-wrap licenses?

    Can someone receiving one of these simply not open it so as not to activate the gag order?

    How can such a gag order be forced on an unwilling party?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 23 Apr 2016 @ 1:12am

      Re:

      How can such a gag order be forced on an unwilling party?

      Lots of guns backed by badges, carrying out a hand delivery.

      reply to this | link to this | view in chronology ]

  • identicon
    JustShutUpAndObey, 22 Apr 2016 @ 11:53am

    Congress Trumps Constitution

    So, laws passed by Congress can over-ride the Constitution? Not what they taught me in grade school civics class.
    Unfortunately, this comes as no surprise.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 22 Apr 2016 @ 12:50pm

      Re: Congress Trumps Constitution

      Yep... and it will not matter which candidate are anyone is voting for be it Bernie, Hillary, Cruz, or Trump?

      No matter which one we vote into office, they think law can override the constitution. They have already said as much during the FBI/Apple debacle!

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 22 Apr 2016 @ 1:08pm

      Re: Congress Trumps Constitution

      So, laws passed by Congress can over-ride the Constitution?

      Under a corrupt government, apparently so.

      Unfortunately, this comes as no surprise.

      One hand washes the other.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Apr 2016 @ 11:58am

    "The Court concludes that as amended, section 3511 complies the constitutional requirements and curses the deficiencies previously identified by this Court."

    Curse those deficiencies! Also those typos.

    reply to this | link to this | view in chronology ]

  • icon
    wshuff (profile), 22 Apr 2016 @ 12:02pm

    ". . . section 3511 complies the constitutional requirements and curses the deficiencies previously identified by this Court."

    And gives the big middle finger to the American people.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Apr 2016 @ 12:08pm

    The Court concludes that as amended, section 3511 complies the constitutional requirements

    nothing... and I MEAN NOTHING complies with the Constitution if any of these items are true.

    -NSL can suppress the business from going to the press with the details of the NSL!
    -NSL is requesting anything without a warrant!

    Last time I checked, the NSL does both of these things! It is not in compliance with the US Constitution!

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 22 Apr 2016 @ 12:30pm

      Re:

      You reading the Constitution stored at the Library of Congress or the secretly passed one from the New World Order?

      That difference might explain your confusion.

      reply to this | link to this | view in chronology ]

    • icon
      Uriel-238 (profile), 22 Apr 2016 @ 12:47pm

      Not in compliance.

      Last I checked, the courts can declare day is night and force you at gunpoint to behold the stars.

      It doesn't speak well of the integrity of the legal system in sustaining human rights. It's more the nature of the guns they point.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Apr 2016 @ 12:24pm

    NSL gag orders without an automatic expiration date are an insult to the Constitution and to human rights.

    That any self-respecting judge thinks otherwise, just means he's corrupt or blackmailed by the very mass surveillance judges have allowed to continue.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Apr 2016 @ 12:37pm

    Did we expect anything different with an act named like that?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Apr 2016 @ 12:52pm

    EFF: Tilting at First Amendment windmills since 1990.

    reply to this | link to this | view in chronology ]

    • icon
      art guerrilla (profile), 22 Apr 2016 @ 2:42pm

      Re:

      EFF: a vital watchdog of privacy rights, who protects even people who ignorantly mock them for what they have to do to ensure our rights are retained...

      reply to this | link to this | view in chronology ]

  • identicon
    Baa Baa Black Sheep, 22 Apr 2016 @ 3:28pm

    What is the situation if one does NOT receive an NSL?

    This looks like a good opportunity for outsourcing the receipt and opening of all government originating mail to a foreign based company. If you don't receive the mail how can you ever comply with the contents. Even if hand delivered by a process server, I am sure one could arrange for it to be delivered into the appropriate foreign hands.

    Either that or leave the country completely. If you have no access to any business records at all, you cannot grant access to said business records irrespective of what government may ask, particularly if all records are immediately encrypted and sent to foreign locations for storage.

    reply to this | link to this | view in chronology ]

    • icon
      Uriel-238 (profile), 22 Apr 2016 @ 3:58pm

      Time to buy up that island.

      Ladar Levision closed Lavabit after receiving a self-gagged NSL demanding nothing short of betrayal of all Lavabit's clients. Now Levisiob is an encryption activist in Europe.

      The US economy is going to go gray as essential services and products become criminalized, and we end up moving utilities like encryption and private communications under the sink.

      I wonder if there will be additional work for us techs from common smartphone users who've seen enough to develop a healthy paranoia of the establishment, but don't have the time / patience / knowhow to kit their own devices with protection from incrimination.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 22 Apr 2016 @ 4:59pm

        Re: Time to buy up that island.

        It's time to start trafficking in bogus NSL's.

        Think about it: drop into a business with an NSL demanding information on, say, Donald Trump; or Charles Koch. You only have to "prove" you're an FBI agent (for example) once and there's your data.

        No come-backs, either. If the real FBI should drop by and ask, well the recipient can't mention the NSL, can they? Gag order. Applies to everyone, remember? Even to telling the courts or other FBI agents.

        It's like a perfect trap door: obtain information by criminal means, with no come-back. Even if the FBI should discover a bogus NSL, it'll be from two years past, no evidence will remain. And there's no hope of determining if anyone else has gotten more of the bogus NSL's. Who would you ask--and would they risk imprisonment to answer in the affirmative?

        I'd be very surprised if there isn't a flourishing industry in bogus NSL's, possibly even in some cases run by rogue agents.

        reply to this | link to this | view in chronology ]

        • icon
          Uriel-238 (profile), 22 Apr 2016 @ 5:04pm

          Holy Backdoor Entry, Batman!

          It's like a perfect trap door: obtain information by criminal means, with no come-back. Even if the FBI should discover a bogus NSL, it'll be from two years past, no evidence will remain.

          An NSL is totally a golden magic unicorn key.

          reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 23 Apr 2016 @ 6:30am

      Re: What is the situation if one does NOT receive an NSL?

      that would require the people sending you the mail to follow their own laws. Which they do not, they do whatever they want and make up the rules after the fact.

      reply to this | link to this | view in chronology ]

  • identicon
    Personanongrata, 22 Apr 2016 @ 6:17pm

    Kangaroo Court in a Banana Republic

    Where do court jester Susan Illston's allegiances lie?

    Does court jester Illston support the Constitution or does she support cleaving out even larger constitutional exceptions that only aide in enabling the government to circumvent/disregard the law for a myriad of expedient motives?

    reply to this | link to this | view in chronology ]

  • identicon
    Rekrul, 22 Apr 2016 @ 8:41pm

    Back in 2013, there was a somewhat surprising, but utterly meaningless, district court ruling in California saying that national security letters were unconstitutional, and that legislation was needed to fix them.

    FTFY

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Apr 2016 @ 6:28am

    wonder what heavy handed tyrannical law will be made constitutional next.

    Maybe freedom has to be earned by those in charge instead of being a basic right. Indentured slavery for all to make up for all the waste.

    reply to this | link to this | view in chronology ]

  • icon
    nasch (profile), 25 Apr 2016 @ 7:22am

    NSLs are not “classic prior restraints” because they do not gag “those who customarily wish to exercise rights of free expression,”

    So now the 5th only applies to those who explicitly invoke it, and the 1st only applies to those who "customarily" use it. The rest of us get reduced rights.

    reply to this | link to this | view in chronology ]

  • icon
    nasch (profile), 25 Apr 2016 @ 7:22am

    NSLs are not “classic prior restraints” because they do not gag “those who customarily wish to exercise rights of free expression,”

    So now the 5th only applies to those who explicitly invoke it, and the 1st only applies to those who "customarily" use it. The rest of us get reduced rights.

    reply to this | link to this | view in chronology ]


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