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