Judge Declares FBI Surveillance Gag Orders Unconstitutional

Future Tense
The Citizen's Guide to the Future
March 15 2013 9:16 PM

Judge Declares FBI Surveillance Gag Orders Unconstitutional

They are used by the FBI to bypass courts and conduct secret surveillance. But now, in what could prove to be a major blow to the Department of Justice, a federal court has found that National Security Letters are unconstitutional.

Ryan Gallagher Ryan Gallagher

Ryan Gallagher is a journalist who reports on surveillance, security, and civil liberties.

In a ruling released today, U.S. District Judge Susan Illston said that NSLs suffer from “significant constitutional defects” and violate the First Amendment because of the way they can be used to effectively gag companies that receive them. Illston has ordered the FBI to stop issuing NSLs and cease enforcing their gag provisions in all cases. However, the ruling has been stayed for 90 days, giving the government the chance to appeal to the 9th Circuit Court of Appeals because of the “constitutional and national security issues at stake.”

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NSLs were created in the late 1970s to help the FBI obtain information about suspected foreign spies. But their use was expanded under the Patriot Act following 9/11, and they can now be used to order companies to provide data on Americans. Last week, Google disclosed that it had been forced to hand over data on thousands of its users in recent years after being served with NSLs—but it was able to divulge only vague information, rather than exact numbers. A company that receives a NSL can be forbidden from talking about it with anyone but a lawyer, or else potentially face years in prison.

The California case was brought in 2011 by civil rights group the Electronic Frontier Foundation, which is representing a telecom company that has not yet been named. "We are very pleased that the court recognized the fatal constitutional shortcomings of the NSL statute," EFF senior staff attorney Matt Zimmerman said in a statement today following the ruling. "The government's gags have truncated the public debate on these controversial surveillance tools."

It’s not the first time NSLs have been deemed unconstitutional by a court. In 2004, New York entrepreneur Nicholas Merrill successfully fought a secret order he received to hand over information on customers of his hosting company. Merrill, who is currently planning to launch a new surveillance-proof Internet provider, won a district court case in 2004 that found provisions of the NSL he received were unconstitutional because they violated both free speech guarantees and protections against unreasonable searches. He won a separate appeals court case in 2008 when parts of the gag order he was under were deemed to violate the First Amendment.

Between 2003 and 2006 nearly 200,000 NSLs were used by the FBI to obtain information about people. In 2007, a report by the Justice Department’s inspector general raised concerns about the use of the letters to “obtain vast quantities of telephone numbers or other records with a single request.” The DOJ said in a statement today that it was reviewing the California ruling. It is likely that it will file an appeal. In the meantime, civil liberties and privacy groups will continue to celebrate what they are claiming as a landmark victory that will "help restore balance between liberty and security."

Future Tense is a partnership of SlateNew America, and Arizona State University.

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