Friday, March 15, 2013

National Security Letters Are Unconstitutional, Federal Judge Rules

Court Finds NSL Statutes Violate First Amendment and Separation of Powers

EFF's NSL legal team.
From left: Mark Rumold, Kurt Opsahl,
Cindy Cohn, Matt Zimmerman
 and Nate Cardozo.
Activist Post

A federal district court judge in San Francisco has ruled that National Security Letter (NSL) provisions in federal law violate the Constitution. The decision came in a lawsuit challenging a NSL on behalf of an unnamed telecommunications company represented by the Electronic Frontier Foundation (EFF).

In the ruling publicly released today, Judge Susan Illston ordered that the Federal Bureau of Investigation (FBI) stop issuing NSLs and cease enforcing the gag provision in this or any other case. The landmark ruling is stayed for 90 days to allow the government to appeal.

"We are very pleased that the court recognized the fatal constitutional shortcomings of the NSL statute," said EFF Senior Staff Attorney Matt Zimmerman. "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."

The controversial NSL provisions EFF challenged on behalf of the unnamed client allow the FBI to issue administrative letters -- on its own authority and without court approval -- to telecommunications companies demanding information about their customers.

The controversial provisions also permit the FBI to permanently gag service providers from revealing anything about the NSLs, including the fact that a demand was made, which prevents providers from notifying either their customers or the public. The limited judicial review provisions essentially write the courts out of the process.

In today's ruling, the court held that the gag order provisions of the statute violate the First Amendment and that the review procedures violate separation of powers. Because those provisions were not separable from the rest of the statute, the court declared the entire statute unconstitutional. In addressing the concerns of the service provider, the court noted: "Petitioner was adamant about its desire to speak publicly about the fact that it received the NSL at issue to further inform the ongoing public debate."

"The First Amendment prevents the government from silencing people and stopping them from criticizing its use of executive surveillance power," said EFF Legal Director Cindy Cohn. "The NSL statute has long been a concern of many Americans, and this small step should help restore balance between liberty and security."

EFF first brought this challenge on behalf of its client in May of 2011.

For the full order:

For more on this case:


Matt Zimmerman Senior Staff Attorney
Electronic Frontier Foundation

Cindy Cohn
Legal Director
Electronic Frontier Foundation

Kurt Opsahl
Senior Staff Attorney
Electronic Frontier Foundation

Related Cases:
In re: 2011 National Security Letter

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Anonymous said...

Now everyone get out there and sue the crap out of them!

Anonymous said...

Why would this ruling have any effect on a government that doesn't recognize laws, treaties, agreements or the Constitution.

This is just a little bit of theater to give us hope that the government can be contained.

Anonymous said...

I have to agree with annon at 4:07

Maybe I'm being a little cynical but it is warranted.

What our Judicial friends say and what they actually do are two entirely different things.

I'm just being a REALIST.

Even if they make this LAW, they often break or ignore many that they choose with impunity.

The corruption in our system is getting so bad it will destroy itself, so nature is actually taking its course, in spite of mans ego and failure to see it.

Mark McCandlish said...

First, my congratulations to the legal team for the Electronic Freedom Foundation. As someone who has been subjected to government surveillance for a couple of decades, I think it's about time for some transparency. And yes, if the Supreme Court agrees, just think what this will do for the Freedom of Information Act. Thank God for judges that still understand the significance of the U.S. Constitution.

Hide Behind said...

So wuhat will be done if the powers that be do not agree.
Will the lawyers file an appeal if more such "illegal and " unconstitutional " practices suppliers of software and hardwate to both gov and civilian firms, all done within a corrupt legal system.
It provides some legal eagles and cuber grouing woth dpmated vash that they need to exist upon.
Will they want someone to be arrested and what officers would enforce the judges ruling; Those of the Justice Dept, good luck with that route.
This is no more than game and roll playing by legal professionals

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