The end of national security letters?

posted at 10:01 am on March 16, 2013 by Jazz Shaw

Anyone who follows both politics and national security issues is probably already familiar the federal government’s practice of sometimes issuing National Security Letters to individuals or organizations during the course of sensitive, security related investigations. Strengthened considerably by the PATRIOT Act over a decade ago, they allow the government to send out a request for information regarding persons under investigation and – in the vast majority of cases – simultaneously issue a binding gag order which forbids the recipient from not only talking about the contents of the letter and the nature of the request, but even mentioning that they received one. And this can be done without the intervention of a judge, at least in some cases.

While this probably won’t be the end of the story, that practice may be coming to an end. A judge in California has ruled the practice unconstitutional and ordered the government to stop issuing them.

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 practices. She also ordered the government to cease enforcing the gag provision in any other cases. However, she stayed her order for 90 days to give the government a chance to appeal to the Ninth Circuit Court of Appeals.

“We are very pleased that the Court recognized the fatal constitutional shortcomings of the NSL statute,” said Matt Zimmerman, senior staff attorney for the Electronic Frontier Foundation, which filed a challenge to NSLs on behalf of an unknown telecom that received an NSL in 2011. “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.”

EFF received one of these letters in 2011 and decided to take the case to court, leading to the decision yesterday. The judge’s main complaint seems to be over the gag orders, rather than the letters themselves, seeing them as a limitless restriction on free speech. I suppose that’s a valid concern, but like many other aspects of investigations covered by the PATRIOT Act, I’m more concerned with allowing any back doors for the government to ferret out information on American citizens without needing to go before a judge and prove that they need the information and that making the investigation public knowledge would constitute a clear and present danger to national security. Obviously the government needs the ability to investigate threats to the nation, but we can’t be having them trample the constitution in the process.

Of course, this still may not stand. The order isn’t even in effect yet, since the judge gave the administration three months to appeal, which they no doubt will. The Supreme Court – assuming it were to get that far – has been fairly generous in terms of giving the Executive branch a lot of leeway in prosecuting terrorism cases since 9-11. It would be interesting to hear their take on this.

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Her life is in danger

tomas on March 16, 2013 at 10:16 AM

I gotta hear more on this, before I form an “educated” opinion.

Somehow something is lacking from this story, for me.
If it’s genuine, then I agree; she’s in some kind of jeopardy.

listens2glenn on March 16, 2013 at 10:29 AM

What happens when the judge gets a NSL?

Curtiss on March 16, 2013 at 10:33 AM

The Supreme Court – assuming it were to get that far – has been fairly generous in terms of giving the Executive branch a lot of leeway in prosecuting terrorism cases since 9-11.

Such has always been the case in wartime. There was only one court — the Taney Court — which might have felt otherwise, but Taney only tried to limit the Government’s denial of habeas corpus while acting as a judge of the Circuit Court (in those days, judges could serve both on the Supreme Court and on a Circuit Court). What was interesting was the commander of the fort’s response to Taney — he ignored him. It would not be until the end of the War of Southern Aggression before a habeas corpus case before the Court restored the right.

As for the EFF, I think they are a left wing organization which would cheer any terrorist attack on our nation. That sort of colors any good feelings I might have about their opposition to DMCA and such.

unclesmrgol on March 16, 2013 at 10:34 AM

OT: Ben Carson on Fox, CPAC address

Philly on March 16, 2013 at 10:35 AM

This jusge can expect to go home and find a drone buzzing the house.

Philly on March 16, 2013 at 10:42 AM

Oh my: Ben Carson hints at being “magically put into the White House”.

Philly on March 16, 2013 at 10:43 AM

A judge in California has ruled the practice unconstitutional and ordered the government to stop issuing them

…in California?…how long before they start stoning her?

KOOLAID2 on March 16, 2013 at 10:57 AM

OT: Ben Carson on Fox, CPAC address

Philly on March 16, 2013 at 10:35 AM

…the CBC are all signing up for speech lessons!

KOOLAID2 on March 16, 2013 at 10:58 AM

Why should the government need a judicial review before collecting information?

Wait for a real “Chicago style” Democrat to get in there and he will show you.

Speaking of style, Psy is all the rage on college campuses. Then there was the standard left gambit. It is called split the generations. It has been done for the last 70 years or so. A critique of Psy by O’Reilly was used as evidence of Fox racism to the impressionable minds.

Then it came out that the Korean had called for the murder of the families of US soldiers during the Iraq war. That was ignored by the media.

Now North Korea is acting like Nazis without stylish clothes and Jews to abuse. Note that Psy has nothing to say to his brothers in the North on their threat to nuke the US.

Gag me (with a spoon) style.

IlikedAUH2O on March 16, 2013 at 11:11 AM

I don’t get the 90 day stays — “You’re violating the Constitution, but you can keep doing it for 90 days so you can get a second opinion.”

29Victor on March 16, 2013 at 11:15 AM

Agreed that Ilston possibly is in physical danger. One can see the equivalent of a Henry II moment on the golf course; “Will no one rid me of this turbulent judge?”.

The next legal step for the Federales is appeal to the 9th Circuit. Which is kinda like appealing to a legal 3-ring circus. They are, by a wide margin, the most overruled Circuit, and they have a habit of ruling in ways that support the most outrageous opinion against both common sense and the plain reading of the Constitution.

Two key points. Any appeals ruling will not come quickly and if the government loses will go to the Roberts Supreme Court; which will add 1-2 years to the delay and to the chances of a government win. Any political crisis over the power of the Federal government will likely have been resolved by then.

Second, what indication is there that the Federales would acknowledge or obey any theoretical ruling against them?

Subotai Bahadur on March 16, 2013 at 11:23 AM

Is this the coercion used to silence media probes about Benghazi survivors?
Or is it simply Kool Aid?

locomotivebreath1901 on March 16, 2013 at 11:31 AM

I was wondering if anyone else realized that these damned NSL’s violated the 1st, 4th, 5th, and 6th Amendments.

Snake307 on March 16, 2013 at 11:35 AM

I was wondering if anyone else noticed that the NSL’s violate the 1st, 4th, 5th, and 6th Amendments? Then this judge noticed that they violate at least the 1st Amendment.

Nice, now about the other Amendments.

Snake307 on March 16, 2013 at 11:40 AM

She will be given an Ambassador’s post so she won’t meddle in His domestic agenda.

Sticky Wicket on March 16, 2013 at 11:44 AM

The matter-of-factness this article is written in is emblematic of the entropy of society and Government intrusion we have achieved.

But hey, it’s Obama. As long as it’s not George Bush, what can we do, right?

HopeHeFails on March 16, 2013 at 11:48 AM

Another one of those pesky Amendments the government seek to get rid of. Usually with a name the means the opposite.

pat on March 16, 2013 at 12:14 PM

It will be interesting to see this go to 9th Circuit. Historically, it has been the most “politically reliable” court from the left’s POV for almost half a century, usually coming up with tortuous “reasoning” to justify ruling in favor of some progressive group riding a typical left-wing hobbyhorse.

But this time, the group in question is challenging the policies of the most overtly “progressive” President since FDR. And the EFF isn’t even all that leftist, being more libertarian in nature.

It will come down to a question of whether or not 9th decides that fealty to leftist dogma (the supremacy of the State- as long as it’s leftist) is more or less important than fealty to the concept of a fundamentally non-conservative group challenging the State.

The decision may not say much about the actual powers of government (9th is the most-overturned court in the land), but it may say a great deal about how high or low the President’s, and Eric Holder’s, stock is with their own base in trendy progressive legal circles.

Watch which judges 9th assigns to the case. That will be a good indicator of who its decision will likely favor.

(My money is on The One. For now.)

clear ether


eon on March 16, 2013 at 1:32 PM

A warrantless search and seizure (by default unconstitutional) followed by a threat of government punishment if you talk about it.

Let me see…this tactic is vaguely familiar…oh yes….thats right.

Its the same way a pedophile covers his tracks….”This is our little secret…if you tell anyone, I’ll kill your family”.

BobMbx on March 16, 2013 at 2:04 PM

Um, why is a Indian national symbol on the top secret file pic?

AshleyTKing on March 16, 2013 at 10:25 PM

AshleyTKing on March 16, 2013 at 10:25 PM

I think it’s supposed to be Cerberus, the three-headed dog that guarded the gates of Hades.

The IngSoc logo from Orwell’s 1984 would probably be nearer the mark. Not to mention easier to draw.



eon on March 17, 2013 at 9:11 AM