National Security Letters With Gag Orders Declared Unconstitutional by Court


Very big news striking at the heart of the modern surveillance state, reported by Wired:

AT&T TSD-3600E Telephone Security Device (Clipper Chip)
Photo credit: Matt Blaze / / CC BY-NC-ND

Ultra-secret national security letters that come with a gag order on the recipient are an unconstitutional impingement on free speech, a federal judge in California ruled Friday.

U.S. District Judge Susan Illston ordered the government to stop issuing so-called NSLs across the board, in a stunning defeat for the Obama administration's surveillance practice. However, she also stayed her order for 90 days to give the government a chance to appeal to the Ninth Circuit Court of Appeals….

The telecommunications company received the ultra-secret demand letter in 2011 from the FBI seeking information about a customer or customers. The telecom took the extraordinary and rare step of challenging the underlying authority of the National Security Letter, as well as the legitimacy of the gag order that came with it.

Both challenges are allowed under a federal law that governs NSLs, a power greatly expanded under the Patriot Act that allows the government to get detailed information on Americans' finances and communications without oversight from a judge. The FBI has issued hundreds of thousands of NSLs and been reprimanded for abusing them — though almost none of the requests have been challenged by the recipients.

What NSLs are, and why they suck:

NSLs are written demands from the FBI that compel internet service providers, credit companies, financial institutions and others to hand over confidential records about their customers, such as subscriber information, phone numbers and e-mail addresses, websites visited and more.

NSLs are a powerful tool because they do not require court approval, and they come with a built-in gag order, preventing recipients from disclosing to anyone that they have even received an NSL. An FBI agent looking into a possible anti-terrorism case can self-issue an NSL to a credit bureau, ISP or phone company with only the sign-off of the Special Agent in Charge of their office. The FBI has to merely assert that the information is "relevant" to an investigation into international terrorism or clandestine intelligence activities.

The lack of court oversight raises the possibility for extensive abuse of NSLs under the cover of secrecy, which the gag order only exacerbates. In 2007 a Justice Department Inspector General audit found that the FBI had indeed abused its authority and misused NSLs on many occasions. After 9/11, for example, the FBI paid multimillion-dollar contracts to AT&T and Verizon requiring the companies tostation employees inside the FBI and to give these employees access to the telecom databases so they could immediately service FBI requests for telephone records. The IG found that the employees let FBI agents illegally look at customer records without paperwork and even wrote NSLs for the FBI.

Details on this specific case:

The latest case is remarkable then for a number of reasons, among them the fact that a telecom challenged the NSL in the first place, and that EFF got the government to agree to release some of the documents to the public, though the telecom was not identified in them. The Wall Street Journal, however, used details left in the court records, and narrowed the likely plaintiffs down to one, a small San-Francisco-based telecom named Credo. The company's CEO, Michael Kieschnick, didn't confirm or deny that his company is the unidentified recipient of the NSL.

The case began sometime in 2011, when Credo or another telecom received an NSL from the FBI.

EFF filed a challenge on behalf of the telecom (.pdf) in May that year on First Amendment grounds, asserting first that the gag order amounted to unconstitutional prior restraint and, second, that the NSL statute itself "violates the anonymous speech and associational rights of Americans" by forcing companies to hand over data about their customers.

Instead of responding directly to that challenge and filing a motion to compel compliance in the way the Justice Department has responded to past challenges, government attorneys instead filed a lawsuit against the telecom, arguing that by refusing to comply with the NSL and hand over the information it was requesting, the telecom was violating the law, since it was "interfer[ing] with the United States' vindication of its sovereign interests in law enforcement, counterintelligence, and protecting national security."…

After heated negotiations with EFF, the Justice Department agreed to stay the civil suit and let the telecom's challenge play out in court. The Justice Department subsequently filed a motion to compel in the challenge case, but has never dropped the civil suit….

The decision.

Past Reason on National Security Letters.

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  1. Boom. CA did something right for a change.

  2. The tenuous spark of liberty continues to live on. I feel some ever so slight encouragement as of late.

  3. I am sure the Nazgul will ride out to protect the Ring of Power.

  4. However, she also stayed her order for 90 days to give the government a chance to appeal to the Ninth Circuit Court of Appeals….

    Let’s hope that it sticks.

    1. where here’s hoping the snoops get their noses slapped again, in advance of the 9 settling it with a ‘stop that’.

      Volunteer breath holders, all over this one if you please, I’m going to see what’s in the fridge.

  5. We cannot have judicial oversight or proper due process in the presence of gag orders and document “secret” classifications. Period. Transparency in government operations is absolutely essential to the maintenance of a free state that derives its authority and just powers from consent of the governed. During war, liberty is shoved aside: the struggle for survival dominates all. Secrecy and coerced silence are often necessary to ensure victory. But in wartime, the primary goal of the government must be to win the war as quickly as possible, so that society can return to its normal state — in the US, to liberty! The “war” on drugs has lasted decades. The “war” on “terror” has lasted over a decade. Recent, undeclared shooting wars overseas have gone on for many years. For the US, WWII lasted fewer than four years! Why isn’t public pressure to end these anti-freedom operations overwhelming by now???

    1. Public schooling, an already pervasive police state, and a mentality among the general public that subordinates to authority. As long as the sheeple are content with their lives, why work up a sweat fighting for liberty?

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