Judge Rules National Security Letters Are Unconstitutional

This is good ... hope it withstands appeal

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 in a decision released 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 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.”

The telecommunications company received the ultra-secret demand letter in 2011 from the FBI seeking information about a customer or customers. The company 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 over the years and has been reprimanded for abusing them — though almost none of the requests have been challenged by the recipients.

After the telecom challenged the NSL, the Justice Department took its own extraordinary measure and sued the company, arguing in court documents that the company was violating the law by challenging its authority.


  1. Larry Sheldon:

    Is this a new thing? Judges doing their jobs?

    Oh. Wait. Ninth Circus. Never mind. This will be fixed.

  2. mesaeconoguy:

    There is an NPI issue here, specifically that the government, through their intelligence gathering actions, may actually stumble upon some wrongdoers, and as a matter of course, take action based on that NPI, for which the relevant data gatherer may sue them anyway for breach of their own protocol.

  3. QuantumMechanic:

    Don't worry. I have faith the higher courts will give the US back its lettres de cachet. :(

  4. obloodyhell:

    }}} After the telecom challenged the NSL, the Justice Department took its own extraordinary measure and sued the company, arguing in court documents that the company was violating the law by challenging its authority.

    Doesn't this kind of thing directly follow from "You have to pass it to see what's in it..."?

    Both are "Pay NO ATTENTION to that man behind the curtain!" (PNA) directives.

  5. obloodyhell:

    The real matter here is that someone outside the executive branch should be doing some oversight. I can see how there might be times and places the government has a legitimate need and want -- entirely outside of its own interests -- to keep such information private.

    But there needs to be an oversight agency that at least TRIES not to be a rubber stamp for "whatever we want".