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.