Shocker: Court Says National Security Letters Are Unconstitutional, Bans Them

from the didn't-see-that-coming dept

Fri, Mar 15th 2013 2:36pm — Mike Masnick

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.

Nsl Order Scan (PDF)Nsl Order Scan (Text)

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Filed Under: constitutionality, national security letters, nsl

42 Comments

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

Great News
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Anonymous Coward, 15 Mar 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, 15 Mar 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), 15 Mar 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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pixelpusher220 (profile), 15 Mar 2013 @ 3:06pm

Re:
Since it's after 5pm on Friday, Sir I raise a drink to you and I raise another to the judge and this ruling
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madasahatter (profile), 15 Mar 2013 @ 3:08pm

Judicial Pushback
At least on Judge understands the US Constitution and the Bill of Rights.
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Anonymous Coward, 15 Mar 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), 15 Mar 2013 @ 3:14pm

Judicial Pushback
At least on Judge understands the US Constitution and the Bill of Rights.
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Chosen Reject (profile), 15 Mar 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), 15 Mar 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, 15 Mar 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, 15 Mar 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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Claire Rand, 15 Mar 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, 15 Mar 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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Anonymous Coward, 15 Mar 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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Anonymous Coward, 15 Mar 2013 @ 4:56pm

Oh noes, they broke the first rule of the club fight.
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Anonymous Coward, 15 Mar 2013 @ 5:50pm

This is the Ninth a lot of what they do gets over turned.
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Thomas (profile), 15 Mar 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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Mason Wheeler, 15 Mar 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, 15 Mar 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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special-interesting (profile), 15 Mar 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, 15 Mar 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, 15 Mar 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, 16 Mar 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, 16 Mar 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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Anonymous Coward, 16 Mar 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, 16 Mar 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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nasch (profile), 16 Mar 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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nasch (profile), 16 Mar 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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nasch (profile), 16 Mar 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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nasch (profile), 16 Mar 2013 @ 9:25am

Re:
I wonder what it's like inside your head.
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Anonymous Coward, 16 Mar 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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Anonymous Coward, 17 Mar 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, 17 Mar 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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tqk (profile), 17 Mar 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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Anonymous Coward, 17 Mar 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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Anonymous Coward, 18 Mar 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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Niall (profile), 18 Mar 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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Niall (profile), 18 Mar 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), 18 Mar 2013 @ 4:13am

Epic win. Hopefully this ruling will survive up to the highest stances...
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David, 23 May 2014 @ 1:07am

Re: Re: Re: Judicial Pushback
Sure, it is a turf war, but it is the right of the citizen to be tried by a jury of his peers and with full access to the evidence and due process which actually makes this a turf war.

Actually, the same goes for the "plea deals" invention by the Department of "Justice" which makes citizens pay a premium in money or incarceration time if they want to take a chance at exerting their Constitutional rights.

The courts are probably not fighting back over that because they are overworked anyhow and, well, they are dependent on the Department of "Justice".
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David, 23 May 2014 @ 1:15am

Re:
Finally, a victory for democracy over totalitarian dictatorship!

Finally, a judge lunging out from behind his defenses. It will remain a singular event like that of Tank Man.
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