Federal Judge Finds National Security Letters Unconstitutional, Bans Them

http://www.wired.com/threatlevel/2013/03/nsl-found-unconstitutional/

by TDL • 13 years ago

646 172 13 years ago

wired.com

koenigdavidmj• 13 years ago

If this was stayed to allow it to go to the circuit appeals court, does it only apply in the Ninth Circuit?

hsmyers• 13 years ago

Not a lawyer, but I'd say yes.

ChuckMcM• 13 years ago

Yes, but hey once the Ninth Circuit throws it out Google and others might be able to plausibly claim[1] they are no longer bound by the gag orders. If it does get by the Ninth circuit then it will go to the Supreme court. Sadly the Supreme Court has been a bit to pro-government to my tastes lately.

[1] Google claims their headquarters are in California, they also move all disputes into California, and so they could claim for the purposes of this statute they are a California company, even though their Incorporation papers are in Delaware I believe. Not a lawyer so can't advise but it is my best guess as to how they would position it.

Zimahl• 13 years ago

Sadly the Supreme Court has been a bit to pro-government to my tastes lately.

I'd have to disagree. We've seen GPS tracking thrown out and other curbs on invasions of privacy. This court seems very interested in broadly defining privacy.

rayiner20• 13 years ago

If the 9th circuit upheld, then it would be binding in the 9th circuit, but persuasive in the other circuits if challenged on those grounds elsewhere.

mtgx• 13 years ago

So then we should hope this goes to the Supreme Court so it can be upheld there and applied everywhere? Or will most smaller courts apply it in other districts anyway, if the 9th Circuit upholds it?

mmastrac• 13 years ago

This part is a big WTF: "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."

dreamdu5t• 13 years ago

That's incredibly alarming. This is Obama's justice department too, headed by people he personally appointed.

KoulMomo2• 13 years ago

Obama's justice department has been just as horrible, if not more-so than Bush's justice department.

sixQuarks2• 13 years ago

As someone who is not affiliated with either party, I really don't get Obama supporters. He was supposed to bring change to the white house, instead, he has expanded Bush-era secrecy and has eroded our civil liberties even further... and not a peep from his support base.

In my view, democrats are the lesser of two evils, but I'm just surprised that nothing has been done about this.

r00fus2• 13 years ago

The depressing part is realizing that Obama is actually the lesser of two evils (two elections running), and that worse could be happening right now in terms of rights erosion and increase in security-state.

There is no left-wing remaining in power in this country. You only have corporatists and reactionary extremists corporatists.

brown9-2• 13 years ago

What civil liberties have been eroded?

jacoblyles3• 13 years ago

I'm in the business of building things that have never been done before, so I value economic freedom and good governance and my estimate of the lesser of two evils goes the other way.

But it's sad that we get no civil liberties either way (unless people like Rand Paul get their way).

rayiner20• 13 years ago

Obama has been more or less the right-center President he was as a candidate. People who are surprised by this wishfully read too much into his rhetoric.

E.g. Obama has continued interventions in Pakistan, etc, even though some people pinned their hopes on him as an "anti-war" candidate. But he was never "anti-war." He was "anti-Iraq war." He ran on a platform of "Bush took us into Iraq instead of hitting the terrorists harder in Afghanistan." So why should anyone be surprised he took troops out of Iraq and put more in Afghanistan?

E.g. re: drone strikes, is it really any worse than the cruise missiles Clinton was fond of using?

"Civil liberties" in the abstract sense, are not a core issue to Obama's base in the same way that say abortion rights are. During Bush, Democrats opposed expansions such as military tribunals in Guantanamo, etc, but things like NSL's have been around since the 1970's. I don't think the bulk of Obama's base have a problem with the status quo circa 1995, or ever did, regardless of what adherent civil libertarians might have hoped.

anigbrowl15• 13 years ago

Bringing change is easier said that done. Consider an example from last week's news; US agents captured Osama bin Laden's son-in-law, a former Al Qaeda spokesman, and have brought him to New York to stand trial. Some politicians are incensed, saying that it willmake NY a terrorist target and that he doesn't deserve a criminal trial, and demanded that the fellow instead be sent off to Guantanamo bay and interrogated, with his fate to be decided by a military court (summarized here: http://articles.washingtonpost.com/2013-03-09/opinions/37579... FWIW I agree with the conclusion of this editorial).

You might remember that Obama attempted to close down the detention facilities in Guantanamo soon after taking office, and wanted to try alleged 9-11 mastermind Khalid Sheikh Mohammad in NYC, but the plan was shelved following vociferous objections, public demonstrations etc. Now I don't want to go all partisan, but I can't help observing that the very same Tea Party type Republicans that object to big government were the very same people that rallied in the streets of NY to argue against transparency and the application of the criminal justice system. For the administration, it's kind of a 'heads you win, tails I love' situation.

Part of the problem is that civil libertarians are not very organized. They don't march on TSA headquarters to demand the right to leave their shoes on, or parade through the streets of NY to champion the criminal justice system, or picket the headquarters of the NSA. When the administration does stand up for civil rights (even in a small way like the above), they get virtually no popular support.

anigbrowl15• 13 years ago

This is exactly what's supposed to happen; the DoJ brought the dispute to the judicial branch and asked a court to resolve it, as opposed to arresting people or seizing control of the assets. They didn't seek the breakup of the company or the arrest or ruin of its officers, they asked the court to require compliance with what they believed to be a valid request in the form of the NSL. The court sided with the defendant, and the DoJ is going to have to abide by that unless they win at appeal.

This is exactly why we have a judicial branch to begin with. You should be celebrating.

guelo• 13 years ago

Wrong. The telecom's suit is the challenge that you're talking about. The second suit claims that the first lawsuit is illegal. It would mean that you're not allowed to challenge the government in court. It would make your flowery language invalid.

jtc3314• 13 years ago

Clearly you didn't read the article. Asking the court to require compliance would have meant that they would have filed a response to the telecom's suit and made the claim that the NSL was warranted and that the suit should be thrown out.

Instead they're claiming that the mere act of filing suit is in itself illegal.

001sky• 13 years ago

This is exactly what's <supposed> to happen, the DoJ brought the dispute to the judicial branch...

-- Nah. DOJ was trying to <bypass> judicial review. Contra separation of powers, per constitution, etc.

InclinedPlane5• 13 years ago

That's not the important part here. If two parties go to court to resolve a dispute over the legality or constitutionality of something that's normal. What's quite unusual is the DoJ attempting to deny the ability of telcos to use the court system at all.

As an analogy imagine that you've just been arrested by a police officer and you are sitting in a dark, windowless room in handcuffs. The officer comes in and you say very clearly and plainly "I want a lawyer, I know my rights". Then the officer responds "you don't have any rights here, you're not getting a lawyer". Most people would probably be outraged, most people would probably experience a chill running down their spine accompanied by an onrush of fear. But this is not so different from what the DoJ was attempting here.

jasonkolb• 13 years ago

This is so awesome. Sometimes it feels like we're barreling towards a monarchy with the executive branch wearing the crown. It made my afternoon to see that there still are operational checks and balances still functioning. I would love to see the judiciary start to rein in the executive branch.

Osiris• 13 years ago

One of the main points of the U.S. constitution is to provide checks and balances so that one branch of government cannot ac t unilaterally without oversight. For the executive branch to argue that in this case there is no way to challenge it is disingenuous at best and at worst, as this judge pointed out, unconstitutional.

It's frustrating to me as a citizen that if a government agency decides it has a problem with me, I'm pretty much screwed unless I have plenty of cash to hire the best lawyers.

coopdog• 13 years ago

Or the EFF, it's almost like little guy insurance

lambda2• 13 years ago

Yep. Donate to the EFF regularly. With all luck, you won't need their services; but in the rare case that you do, it's much better to have them still be around and well funded.

anigbrowl15• 13 years ago

Realistically, you are just as screwed if any large organization launches a civil suit against you. Congress frequently produces laws that attempt to mandate the behavior of the Executive branch* while excluding that behavior from judicial review (which courts do not take kindly to and frequently dismiss).

A lot of legislators do not like the Judicial branch and consider it to be an annoying restraint on their lawmaking power; what looks like tension between the Executive and Judicial branches is often as not a proxy for Legislative claims. Whenever you see a piece of legislation with phraseology like '[officer of some executive branch agency] shall do x, y, z, in the following fashion...' pay attention to the word shall. In law this is understood to make the action mandatory, and where the law is very specific on procedures and actions it's basically an attempt to micromanage the operation of the agency in question.

Consider the following imaginary law:

If any person wears white after Labor Day, the head of the Fashion Police shall cause that person to be arrested and fined $1,000. This procedure shall not be subject to judicial review.

Now if you're the Fashionista-general, you have no choice but to arrest people wearing white after Labor Day [for non-Americans, wearing white after late September is jokingly regarded as an offense against good taste]. Failure to do so clearly violates the oath of office required of office-holders in the Executive branch. And the same law says that you don't get to complain about this in court, so judges are supposed to dismiss your case without even giving it a hearing. That will make people mad with the Fashion Police and frustrated with the Courts, even though the blame for this law lies with the Legislature.

Here's an example of a real law that operates this way, from a current immigration statute: http://www.law.cornell.edu/uscode/text/8/1252

Note section (a)(2)(A)(i): the law applies to people who receive orders of removal, aka deportation orders (a); it's explicitly not subject to judicial review (2)(A); and the procedures for dealing with individual cases are very narrowly specified in the section linked to from clause (i), with a lot of detail specifying how people shall be categorized and treated.

wnight6• 13 years ago

And (a) explicitly not constitutional in that it attempts to bypass the limits knowingly placed upon government by the people. An order to bypass auditors is never valid, especially from government.

That you think this is okay is scary. But this is why we need to remember that the law is an imperfect rendering of our intent, not the other way around.

rayiner20• 13 years ago

Great work by the EFF here. There is a delicate balance between the power of the executive and the power of the courts and trying to chill the telecom's access to the court system by claiming that the company was interfering with an investigation by challenging the NSL is a deeply troubling action. Abuses can be fixed, but not if they can't be challenged in court.

mrich• 13 years ago

Kudos also to the unnamed telecom company that went out of their way to fight this, and the EFF for fighting the good fight. Don't forget to donate to them.

fnordfnordfnord3• 13 years ago

Credo mobile, it's in the article.

dchichkov• 13 years ago

Kudos to the EFF. And here is a link to vote with your money: https://supporters.eff.org/donate/nsl

(And yes, I'm a member)

sp332• 13 years ago

Anyone know which telco this really was?

Scramblejams• 13 years ago

It's in the article.

nmcfarl• 13 years ago

The article says it’s likely Credo Mobile.

They're a fairly great little MVNO out of San Francisco. My wife, who is a customer, loves their customer service. And they’ve spoken out against the Patriot act - here’s tweet of theirs on the subject: https://twitter.com/CREDOMobile/status/4326145876

fnordfnordfnord3• 13 years ago

Fuckin' A, man!

Please forgive me for that outburst. But this really puts a smile on my face. I think I'll go give more money to the EFF. Maybe rename my daughter Susan.

tatsuke95• 13 years ago

>Maybe rename my daughter Susan.

Or just have another daughter...or son?

fnordfnordfnord3• 13 years ago

Maybe so, but if I had another son, I could never name him Sue. http://www.youtube.com/watch?v=-1BJfDvSITY

csense• 13 years ago

There's a lot of grousing in the tech community -- and HN in particular -- about all the threats to freedom, and for all the problems with the government's responses to current issues like new technologies or terrorism.

There's legitimate substance here, but occasionally, the system actually works exactly the way it's supposed to -- the judicial branch both asserting its independence from the executive and striking down an overreaching action by the latter.

In the actual ruling [1], the judge provides a very apt quotation from another case: "Under no circumstances should the Judiciary become the handmaiden of the Executive." This is particularly important in matters of national security. The tendency is for the executive branch to say the magic words "national security" if those words tend to cause other people to let them do whatever they want.

EDIT: Actually link to the ruling

[1] https://www.eff.org/document/nsl-ruling-march-14-2013

MartinCron• 13 years ago

the system actually works exactly the way it's supposed to

The system actually works exactly the way it's supposed to far more often than the cynics like to admit. The system isn't perfect, but I'm not about to stop believing in justice just yet.

rayiner20• 13 years ago

I've always found reading Hamdi v. Rumsfeld to be soothing when I'm feeling cynical: http://scholar.google.com/scholar_case?case=6173897153146757....

This is just a few years after 9/11, a year into the Iraq war, and Scalia, joined by Stevens, dissenting because the majority didn't go far enough in protecting an accused terrorist from the Bush administration:

"Having distorted the Suspension Clause, the plurality finishes up by transmogrifying the Great Writ—disposing of the present habeas petition by remanding for the District Court to "engag[e] in a factfinding process that is both prudent and incremental," ante, at 539. "In the absence of [the Executive's prior provision of procedures that satisfy due process], ... a court that receives a petition for a writ of habeas corpus from an alleged enemy combatant must itself ensure that the minimum requirements of due process are achieved." Ante, at 538. This judicial remediation of executive default is unheard of. The role of habeas corpus is to determine the legality of executive detention, not to supply the omitted process necessary to make it legal. See Preiser v. Rodriguez, 411 U.S. 475, 484 (1973) ("[T]he essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and ... the traditional function of the writ is to secure release from illegal custody"); 1 Blackstone 132-133. It is not the habeas court's function to make illegal detention legal by supplying a process that the Government could have provided, but chose not to. If Hamdi is being imprisoned in violation of the Constitution (because without due process of law), then his habeas petition should be granted; the Executive may then hand him over to the criminal authorities, whose detention for the purpose of prosecution will be lawful, or else must release him."

His whole dissent, starting at 554, is worth a read.

InclinedPlane5• 13 years ago

A big reason why the system doesn't work when it doesn't is apathy, if more people merely took the effort to inform themselves and work within the system we'd be light-years ahead of where we are now.

lambda2• 13 years ago

> There's legitimate substance here, but occasionally, the system actually works exactly the way it's supposed to -- the judicial branch both asserting its independence from the executive and striking down an overreaching action by the latter.

Note that this isn't over yet. The judge put a stay on the ruling to allow the government to appeal. Note that national security letters have been around since 1978; and have been greatly expanded in scope in 2001. So depending on how you count, that's 12 years or 35 years of lost liberty. I'm not sure I would count that as a system working the way it's supposed to. How many years of living under gag orders do we consider acceptable?

graycat• 13 years ago

As at

http://wiki.monticello.org/mediawiki/index.php/Eternal_vigil...

attributed to Jefferson is

"The price of liberty is eternal vigilance."

So, US citizens need to resist the excesses of big gumment and, moreover, as good news, can do so with a simple letter to their Congressman and Senators, if enough citizens do that.

E.g., it was good to see SOPA/PIPA go down for the count after one punch from a flurry of publicity and letters to Congress. I wrote all three of my guys here in NY.

One way to get more such needed letters is more information on the Internet as here on HN. While the EFF seems to do a lot of really good work, the legal system is slow while a few 18 wheel trucks of letters to Congress can get action as quickly as Congress can act which means in less than 24 hours. Two-thirds of the House; two-thirds of the Senate; do not pass the White House, do not collect the president's signature; done. We actually do live in a quite responsive democracy; when enough citizens shout "frog" Congress jumps; and Congress has the lion's share of the power.

For the power of more information, as at

http://www.nysscpa.org/cpajournal/2003/1203/nv/nv2.htm

"'Sunlight is the best disinfectant,'” a well-known quote from U.S. Supreme Court Justice Louis Brandeis".

The NSL situation was so obviously unconstitutional that I have to believe that the W efforts to push through that and similar stuff after 9/11 were understood at the time to be unconstitutional but to give a window, until cases were brought and the courts acted, to permit defending against anymore 9/11s.

Hopefully the FBI and the DoJ didn't do too much damage to honest US citizens and did round up lots of wacko Jihaders dreaming of a harem of 72 virgins or whatever.

lsiebert• 13 years ago

This ban is stayed so the 9th Circuit of Appeals can consider it.

bilbo0s• 13 years ago

EFF just earned themselves a big bonus from me this year.

This is exactly what the nation needs. We should be pushing back against government overreach where fundamental freedoms are concerned.

rsync• 13 years ago

This will open up our Monday morning schedule nicely if we no longer have to maintain:

http://www.rsync.net/resources/notices/canary.txt

It would be our great pleasure :)

bashinator2• 13 years ago

Wouldn't this just be considered premeditated intent to violate the NSL gag orders?

noonespecial• 13 years ago

I think it works like this. They are not permitted to tell you that they have been served a warrant, but they are always free to tell you that they haven't. If they should suddenly stop doing so, its up to you to draw your own conclusions as to why. That seems reasonable, even in the context of the madness of federal law.

As the text file says however, its always possible that they are being coerced to lie and continue to say that they haven't when they have.

InclinedPlane5• 13 years ago

Until they've been served the gag order they are under no obligation to follow it.

protomyth• 13 years ago

sorry: "However, she stayed her order for 90 days to give the government a chance to appeal to the Ninth Circuit Court of Appeals."

will_brown3• 13 years ago

This is definitely a victory and kudos to the EFF, but keep this win in perspective. The Court only ruled on the gag orders attached to the NSLs.

Therefore, as of now the executive can still issue an NSL, without a gag order attached, which is still the equivalent of a warrant less search and seizure. So there is still a larger fight ahead in getting the Courts to rule the NSLs are Unconstitutional.

r00fus2• 13 years ago

Don't just give them kudos. Send the EFF dollars.

will_brown3• 13 years ago

I have done more than send money to the EFF, I applied to be an attorney for the EFF and when that did not pan out I contacted them to volunteer my legal services pro-bono. I don't see eye to eye with the EFF on all issues, but when they sued AT&T in 2006 I saw the potential ACLU of technology.

mey• 13 years ago

Please read the EFF's press release closely. Specifically

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.

There is are two separate issues, overstepping of executive authority and free speech, all aspects of NSL are being declared. Not just the gag section. Now there is a 90 day window for appeal, and I would expect the DoJ to appeal.

will_brown3• 13 years ago

>Please read the EFF's press release closely. Specifically

Thanks, I read the Court opinion.

Though I think you need to read my comment more specifically. There is nothing inconsistent with my comment and your comment, I think you just got hung up on the Court declaring the entire NSL law unconstitutional and I reference NSLs being sent in the future without gag-orders.

You are correct there were two issues in the case, but the second issue "the judicial review provision" was only related to the NSL nondisclosure provision. See Page 1 paragraphs 20-22 of the Court Order (issue one and two "collectively refered to as 'NSL nondisclosure provisions).

Therefore, Congress can reauthorize NSL without gag-orders, and they will bc that is what Congress does when a new law is struck down they rewrite it to comply with the Court ruling. Then the NSL without gag-order will be challenged again and this time not under the 1st Amendment like the non-disclosure provisions but under the 4th Amendment.

geoffc• 13 years ago

The judge is an America hero. The NSL's are Orwellian. I just donated to the EFF, please do likewise.

mpyne• 13 years ago

Two thumbs up to the EFF on this one! I just hope it holds up at the Supreme Court level and we can start restoring the checks and balances of our republic.

marze• 13 years ago

Given the lack of seriously dangerous threats to the usa we've heard about (and I assume we'd hear), I can't believe that just letting someone discuss a request for information they receive would be cause any real danger.

InclinedPlane5• 13 years ago

To be fair there have been some seriously dangerous threats that have been forestalled by government action.

Unfortunately though there is a widespread pattern of many of these folks effectively being entrapped by the government, but there are a handful of legitimate threats even so.

unclebucknasty9• 13 years ago

It shouldn't feel like a victory that the DOJ didn't prevail here.

Instead, it should feel like a loss that we are even having to argue this. NSLs are flagrantly unconstitutional warrantless searches.

How far gone we are since 9/11. We gave up so many rights in virtually one fell swoop, and now we are having to claw and fight to try to win back some of our most basic protections and freedoms.

It's so bad that we win back a mere semblance of a basic right that should be ours by the Constitution, and we feel like we won the lottery. I was pretty excited myself until I had that realization.

Not to be a party-pooper.

iamdave• 13 years ago

Question: Does this mean NSLs are now subject to FOIA requests?

Federal Judge Finds National Security Letters Unconstitutional, Bans Them

Related Stories