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United States Government The Courts

National Security Letters Ruled Unconstitutional, Banned 231

Posted by Soulskill
from the hooray-for-the-eff dept.
A U.S. District Court Judge in California today ruled that so-called National Security Letters, used by government agencies to force business and organizations to turn over information on citizens, are unconstitutional. Judge Susan Illston ordered the government to stop using them, but gave the government a 90-day window to appeal the decision, during which the NSLs may still be sent out. The letters were challenged by the Electronic Frontier Foundation on behalf of a telecom who was ordered to provide data. "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. 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. The move stunned the Electronic Frontier Foundation, which is representing the anonymous telecom. ... 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."
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National Security Letters Ruled Unconstitutional, Banned

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  • by inputdev (1252080) on Friday March 15, 2013 @05:57PM (#43186709)
    It's nice to see checks and balances. I wondered what happened to those.
    • by aaaaaaargh! (1150173) on Friday March 15, 2013 @06:03PM (#43186737)

      Looks more like David against Goliath to me.

      • by fyngyrz (762201) on Friday March 15, 2013 @06:20PM (#43186855) Homepage Journal

        Yeah. Except this David doesn't even have a sling. It's going to go to SCOTUS, they'll side with the save-the-children, oh-no-terrorists, and it's-for-your-own-good crackpottery that dominates the mindset of our legislature and our judiciary.

        Interstate = intrastate, ex post facto = go ahead and add punishment (just call it something else), probable cause = "well, we thought it was a reasonable search", borders = 100mi from the.... borders.

        Come on, we know exactly how this is going to go.

        Although I have to say, three fucking big cheers for trying, little people.

        • by Nyder (754090)

          Yeah. Except this David doesn't even have a sling. It's going to go to SCOTUS, they'll side with the save-the-children, oh-no-terrorists, and it's-for-your-own-good crackpottery that dominates the mindset of our legislature and our judiciary.

          Interstate = intrastate, ex post facto = go ahead and add punishment (just call it something else), probable cause = "well, we thought it was a reasonable search", borders = 100mi from the.... borders.

          Come on, we know exactly how this is going to go.

          Although I have to say, three fucking big cheers for trying, little people.

          You forgot to add how piracy of Music and Movies are the problem also...

    • by Hatta (162192) on Friday March 15, 2013 @06:04PM (#43186749) Journal

      This is all just part of the process in getting it to the Supreme Court where they will be rubberstamped. And then no one can ever challenge their constitutionality again.

      • by Immerman (2627577) on Friday March 15, 2013 @06:21PM (#43186859)

        Damn, someone even more cynical than me. Gods I hope you're wrong.

        • Re: (Score:2, Funny)

          by Anonymous Coward
          What you mistake for cynicism is merely a more fashionable brand of naivete.
          • by Immerman (2627577) on Friday March 15, 2013 @07:51PM (#43187489)

            Hey, a new addition to the doublespeak dictionary: Cynicism is Naivete.

            You may well be right, and that would be a deeply worrying trend since unlike most flavors of naivete which lead people to overreach their abilities (and sometimes succeed), cynicism leads people to attempt nothing at all, and thus certainly fail.

            Thank you for a potentially productive perspective, I'll have to try it on the universe for a while see if it fits.

      • by slimjim8094 (941042) <slashdot3.justconnected@net> on Friday March 15, 2013 @06:29PM (#43186909)

        [Once it's been upheld by the Supreme Court], no one can ever challenge their constitutionality again.

        Not quite. Ever heard of Plessy v. Ferguson? It's admittedly much more difficult (on the balance for good reason) to challenge a previously-decided Supreme Court decision, but by no means impossible. That's just one (probably the most famous) example of the Court reversing itself, but there's a lot more.

        • "That's just one (probably the most famous) example of the Court reversing itself, but there's a lot more."

          Now all we need is a reversal of Wickard v. Filburn (arguably on its way, with all the recent State nullification of Federal "interstate commerce clause justified" laws.

          And a few others, too. But that would be a big one, and as I say there is a very good chance we will see it before many years are out.

      • Precedents (Score:5, Informative)

        by istartedi (132515) on Friday March 15, 2013 @06:33PM (#43186939) Journal

        And then no one can ever challenge their constitutionality again.

        Well, there's the Dred Scott decision; but the process of challenging that one killed 600,000 Americans.

        Less difficult challenges were "Buck vs. Bell" which IIRC was the one that allowed states to sterilize people against their will and was the source of the infamous "3 generations of imbeciles are enough" quote.

        I'm sure there are plenty of other cases; but the bottom line is that SCOTUS ruling one way doesn't etch things in stone. You know what they say, Freedom isn't Free. Sometimes you have to die, fill the jails, lose all your money, etc; and if you're lucky you'll live to see your grandchildren get their God given rights back from those who stole them.

      • Laws usually have many provisions, and each provision is separately vulnerable to attack.
        • "Laws usually have many provisions, and each provision is separately vulnerable to attack."

          In this particular case, though, the gag order provisions were not severable from the other provisions, which is why the judge ruled the whole thing unconstitutional, rather than just part of it.

    • I wondered what happened to those.

      David Copperfield made them disappear. He best, longest running gag yet. And nobody has even noticed yet...

    • by Immerman (2627577)

      The checks were cashed in order to tip the balances.

      I can only assume that in this case either somebody didn't get their check, or somebody with some integrity was accidentally allowed to hold an important office. Either way I'm sure lots of powerful people are scrambling to rectify the oversight.

      Let's all give a big round of applause to Judge Susan Illston for actually upholding her oath and doing her part to rein in the beast of unrestrained government power. hopefully the Supreme Court will show simila

    • Re: (Score:3, Insightful)

      by Anonymous Coward

      "Patriot Act" was a very highly manipulative naming for a very unpatriotic act. Smoke and mirrors all too common and further enabled by current major media.

      • Re: (Score:2, Informative)

        by dcollins117 (1267462)

        "Patriot Act" was a very highly manipulative naming for a very unpatriotic act.

        It is DoubleSpeak exactly as described by Orwell in the book 1984. Some people read the book and see cautionary tale of a dystopian future in which an oppresive govenment exerts mind control on its citizens, while others see it as a handy instruction booklet. The former are called "Normal", the latter "Republicans."

        • by anagama (611277) <obamaisaneocon@nothingchanged.org> on Friday March 15, 2013 @10:57PM (#43188395) Homepage

          Seriously, fuck you. If there is anything the Obama administration has proven, is that Democrats ONLY hate the GWB neo con agenda when the GOP does it. When a Democrat is even more hardcore than GWB .... Fucking crickets. America would better off by far if every GOP and DNC POS simultaneously had massive strokes. It could be called the stroke of luck in future history books.

          • by jmcvetta (153563)

            America would better off by far if every GOP and DNC POS simultaneously had massive strokes. It could be called the stroke of luck in future history books.

            Where's a deity with a sense of humor when you need one?

      • by Jane Q. Public (1010737) on Friday March 15, 2013 @10:42PM (#43188325)

        "'Patriot Act' was a very highly manipulative naming for a very unpatriotic act. Smoke and mirrors all too common and further enabled by current major media."

        Kind of like "Affordable Care Act"? The one that would fine people thousands of dollars for not buying insurance they already couldn't afford to buy?

        • ... For the sake of completeness I should add: "And which has already driven insurance premiums up significantly, and will likely do so much more once all the provisions are in place?"
        • by number11 (129686) on Friday March 15, 2013 @11:17PM (#43188485)

          "'Patriot Act' was a very highly manipulative naming for a very unpatriotic act. Smoke and mirrors all too common and further enabled by current major media."

          Kind of like "Affordable Care Act"? The one that would fine people thousands of dollars for not buying insurance they already couldn't afford to buy?

          You mean, that act that provides subsidies for low-income people to buy insurance with, and tightens the screws on employers who don't provide health insurance? That prohibits insurance companies from dumping/refusing you because you were sick?

          Yeah, it's a crappy law, tailored to keep the big insurance companies happy. They should have just expanded Medicare to cover everybody (health care shouldn't have anything to do with the tender mercies of employers or insurance companies, and Medicare's overhead expense is a small fraction of what insurance companies cost), but the insurance business (which largely overlaps the financial business) is too powerful to let themselves get cut out of the picture that way.

          But it's better than the previous situation, where medical problems are the #1 cause of both bankruptcy and homelessness, where the wealthy and well-insured get great care, and the hospitals have to eat the cost of care for those who can't afford it.

    • by memnock (466995)

      It is nice to see. I wonder though why it's taken this long for a ruling that actually does check some of the over reach of the govt. Does this ruling actually have the legs to make it the SCOTUS and be upheld? I hope so, but I'm not sure the chances are good since all other challenges have been turned aside. But I'm not legal scholar, so perhaps this case has the right details and arguments to last through all the challenges.

      To echo others, I'd like to help this case, but the rejection, overruling, or upho

      • by number11 (129686)

        It is nice to see. I wonder though why it's taken this long for a ruling that actually does check some of the over reach of the govt.

        It hasn't really been to court, since most telcos don't care, it's no skin off their nose. You can't fight it, because they don't tell you that it's your records the snoops want. Apparently the telco that was willing to fight in this case is cell-phone company Credo, which isn't exactly one of the big 3.

        Though I don't have any great hope that higher courts will stand up for the rule of law, the govt will whisper "terrorists" and the judges will all hide under their benches.

    • by akboss (823334) <akboss@sud d e n l i nk.net> on Friday March 15, 2013 @07:26PM (#43187289)

      It's nice to see checks and balances. I wondered what happened to those.

      The checks bounced and the balances are tipped over.

    • by PPH (736903)

      Your check wasn't big enough.

    • by shentino (1139071)

      They went into our congresscritter's pockets.

    • Re: (Score:2, Insightful)

      by Anonymous Coward

      Yeah, this actually makes me want to donate outside of the bundles. It's great to see an organization that is fighting for the rights of individual citizens instead of companies and the government.

      • by BlueStrat (756137)

        Yeah, this actually makes me want to donate outside of the bundles. It's great to see an organization that is fighting for the rights of individual citizens instead of companies and the government.

        So, you're advocating people lend financial assistance to a "terrorist organization" (EFF having been placed on the double-secret-probation terrorist list by the DoJ/DHS)? Enjoy your stay at Gitmo. /sarc

        Seriously though, it would not surprise me in the least to hear in the near future that the DoJ/DHS has labeled the EFF as some sort of terrorism-supporting organization. That's the problem with wars against nebulous and ill-defined groups such as "terrorists". All it takes is redefining/widening what the de

    • by Anonymous Coward

      I don't live in the US, but I've gone ahead and donated to the EFF.

    • by MrEricSir (398214)

      Is there a way to donate 100% anonymously? I don't want my name on yet another "sucker list."

  • Actually... (Score:5, Funny)

    by Anonymous Coward on Friday March 15, 2013 @06:07PM (#43186767)

    they are constitutional. I have proof but you're not allowed to see it. I'd tell you how many pages that proof has but that would endanger the lives of officers in the field.

    • Pics or it doesn't exist.

    • . . . a National Security Letter is being printed now, with your name on it, Mr. Anonymous Coward. Because the Ministerium für Staatssicherheit thinks that may not be your real first name, letters will be printed for all A* Cowards. Or better yet, A* C*. Oh, the hell with it, let's just do * * and be done with it.

      Actually, I wonder why they even bother to issue a letter anyway these days.

      When WWII ended, the US won a bunch of German rocket scientists as a prize for its space program. When the Ber

    • Re:Actually... (Score:5, Insightful)

      by shentino (1139071) on Friday March 15, 2013 @08:36PM (#43187725)

      You know what's interesting is that the Bill of Rights is in the constitution as a pack of 10 amendments, whereas the laws that even define the concepts of state secrets and classified information are established at a federal statute level.

      Given the supremacy clause, shouldn't my civil rights trump concerns about national security?

      The law that says I am entitled to due process outranks the law that says I have to let the government play keep-away with information.

      • Re:Actually... (Score:4, Insightful)

        by amiga3D (567632) on Friday March 15, 2013 @10:11PM (#43188187)

        It's the interpretation that gets you. They simply redefine the words of the Constitution so that it means what they'd like it to say.

      • What amiga3D said. What's really the sad part is that any such interpretation is invalid on its face. We know what the historical documents said about the precise meaning of every part of the Constitution. None of it is ambiguous. It is only claimed to be ambiguous by people who want to change it. And EVERY change made so far has proven to be for the worse.

        --
        "The first and governing maxim in the interpretation of a statute is to discover the meaning of those who made it." -- James Wilson
  • by reve_etrange (2377702) on Friday March 15, 2013 @06:11PM (#43186797)

    My bet is on a small ISP based in Santa Rosa, CA.

    • Actually TFA asserts the telco is CREDO / Working Assets, which provides mobile and land-line services primarily to non-profits. Sonic.net was a good guess though, they have done similar things in the past.
  • by ohnocitizen (1951674) on Friday March 15, 2013 @06:11PM (#43186801)

    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

    . Stunning is the right word. That lawsuit, which appears to still be active, is an affront to a nation of laws with respect for civil rights. Legally attacking citizens for challenging authority ought to carry a steep political price.

  • Supreme court (Score:4, Interesting)

    by Anonymous Coward on Friday March 15, 2013 @06:12PM (#43186807)

    There should be a mechanism for cases like this to leapfrog to the SC. Nothing will be decided 'till it gets there. (I should live so long...)

  • by v1 (525388) on Friday March 15, 2013 @06:17PM (#43186837) Homepage Journal

    to support this and help it get driven all the way to the top SCOTUS?) so it gets set in concrete?

  • by redshirt (95023) on Friday March 15, 2013 @06:36PM (#43186963)

    Many people think that a corporation's Human Resources department is there for the protection of the employees. In reality, the opposite is the case - to protect the management from the employees. The same is true for the Justice Department. It doesn't exist to protect the people, but rather to protect the administration and control the population. Sure every once in a while they manage to do the right thing to satisfy the people. My HR department organizes an annual summer picnic.

    • by DragonWriter (970822) on Friday March 15, 2013 @07:12PM (#43187207)

      Many people think that a corporation's Human Resources department is there for the protection of the employees.

      Which is silly, because if companies even wanted to expend the slightest effort to pretend that was the case, they would call it "Employee Services". They call it "Human Resources" quite honestly -- its there to manage corporate resources that happen to be human.

      In reality, the opposite is the case - to protect the management from the employees.

      No, its there to protect the value of the employees (including those that are "management") as corporate assets; protecting the corporation from harm when those assets operate outside of the corporations desired parameters is a part of that, but doesn't define the role. This is much the same role as, say, the department tasked with overseeing factory operations has with respect to heavy machinery.

      Sure every once in a while they manage to do the right thing to satisfy the people. My HR department organizes an annual summer picnic.

      Manging morale for the purpose of increasing retention and productivity is part of the positive value side of protecting the value of the employees as corporate assets as much as mitigating the harm from dissatisfied employees is on the negative value side. You oil the machine to keep it working while it is working as desired, and you contain the damage and discard it as quickly as possible when it stops doing so and becomes a liability to keep around. All part of the same mission.

  • by DoofusOfDeath (636671) on Friday March 15, 2013 @06:36PM (#43186965)

    How is this not all over the front of every news site's homepage?

    • Re: (Score:2, Funny)

      by Anonymous Coward

      Maybe they all got NSL demanding they not publish it?

    • by Sulphur (1548251)

      How is this not all over the front of every news site's homepage?

      When someone can be judge, jury, executioner, and managing editor ...

  • by erroneus (253617) on Friday March 15, 2013 @07:39PM (#43187385) Homepage

    Even as I was a TSA screener for a while, the whole "papers please!" measures that have been coming down have simply reminded me of "Nazi Germany" from old movies and the like. At some level I found it amusing if only because people were so easily pushed into accepting this. Nobody questioned things enough. Nobody asked "why is the security threat condition never 'GREEN'?" Of course I was also disgusted by it. That we were told to explain to people about rules which were 'secret' and couldn't be shown to them made me feel like a real shit. I was glad to finally get another job when I could.

    A government which cannot be trusted has already betrayed the people and it needs to be corrected. "It was my job" was an excuse I used too... though, the things I let slip by me... well... :) I can't say that I let them slip by intentionally, but in one attempt, I was foiled by a co-worker who ratted out a one-legged man who had marijuana in his pocket. I *so* wanted to let that go...

    • Even as I was a TSA screener for a while, the whole "papers please!" measures that have been coming down have simply reminded me of "Nazi Germany" from old movies and the like.

      Which just goes to show that what everyone says is true - the TSA hires clueless idiots. As bad as it's gotten, we're nowhere even *close* to a totalitarian state. Hint: In such a state, not only would the lawsuit that's under discussion here never be filed... we wouldn't even be having this discussion. (In the literal sense - the

      • Re: (Score:2, Funny)

        by Anonymous Coward

        Yes! At last someone has seen the truth - everything is Just Fine.

      • by crdotson (224356)

        You're right. We should really wait for it together a lot closer to a totalitarian state before worrying.

      • As bad as it's gotten, we're nowhere even *close* to a totalitarian state.

        He didn't even say we were. He said that one thing that we're doing reminded him of the Nazi Germany in old movies. That's not at all the same as saying we're a totalitarian state.

    • by dcollins (135727)

      "Nobody questioned things enough."

      I disagree. In my experience of things political, questions don't do dick. We need assertions and declaratory statements, like: "No", "I will not do that", "This is bullshit", and "We will organize, resist, and defeat you". Questions in a political context are like farting in a windstorm.

  • The whole point of national security letters is to suspend rule of law due to an emergency, right?

  • Isn't the 14th Amendmen to the *Constitution* supreme to any law that would give the feds the right to do this crap?

    They call it the "supremacy" clause for a reason.

    • by amiga3D (567632)

      There you go bringing up the Constitution. Nobody pays any attention to that old thing anymore.

  • A modestly positioned judge has taken a stand against what most of us here oppose. What can we do? Make noise!
    Write your congrescritters -- real letters, made of paper.
    Call your local TV stations and urgently express your desire that they talk this up repeatedly.
    Use social media to praise the judge too.

  • I don't like the way they are arguing over just the gag order. It just means courts could cop out on the issue and the congress can rewrite the law with limits on the gag requirement.

    The bigger issue is whom establishes when the executive branch has substantial real cause. Second does the legislature have the authority outside of a constitutional amendment to allow the executive branch to bypass judicial oversight.

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