by Gene Howington, Guest Blogger
In what may be good news for civil libertarians in a decision released on Friday, U.S. District Judge Susan Illston (District Court of Northern California, 9th Circuit, San Francisco) ordered the government to stop issuing National Security Letters (NSL) across the board, holding that issuing the NSLs violate the 1st Amendment Right to Free Speech and Right of Free Association. For those of you not familiar with NSLs, they are written demands from the FBI that compel phone companies, internet service providers, credit companies, financial institutions and others to hand over confidential records about their customers. This information includes subscriber information, phone numbers, e-mail addresses, websites visited, physical local of mobile phones, etc. NSLs have been controversial from the start as they did not require court approval and they come with a built-in gag order that prevents recipients from disclosing to anyone that they have even received an NSL. FBI agents essentially self-issue an NSL with only the only oversight being a sign-off from the Special Agent in Charge of their office. There is no judicial oversight, no proof required, just the mere assertion by the Executive controlled FBI that the information is “relevant” to an investigation into international terrorism or clandestine intelligence activities and their own Executive generated approval.
The words “unchecked rubber stamp” come to mind.
This stunning defeat for the Obama administration’s surveillance practices as carried over from the Bush Administration in a power that was created by Congress in 1986 but greatly expanded by the controversial Patriot Act is good news, but not great news. Judge Illston concurrently issued a 90-day stay on her orders to allow the government to appeal to the 9th Circuit Court of Appeals and the ruling is narrow in scope (see below). This case is not, however, the first swing at this question before the court(s) and it is unlikely to be the last.
Part of understanding the narrow scope of this ruling is knowing that these NSL’s gag order as formulated under the Patriot Act was lifelong. You read that right. You could never tell anyone anything ever about getting a NSL or what information was being sought by the FBI. Prior to the present case at bar, the use of NSLs was challenged by Nicholas Merrill, the founder of Calyx Internet Access, a small ISP. In 2004, he contested the NSL requests claiming that customer records were constitutionally protected information. Due to the nature of the lifelong gag order, Merrill is identified as John Doe in the filings (made on his and others behalf by the ACLU) which came to be known as Doe v. Ashcroft/Gonzales/Mukasey/Holder as the Office of U.S. Attorney General changed hands. In 2004, as Doe v. Gonzales, a victory for civil liberties came when Judge Victor Marrero (District Court of Southern New York, 2nd Circuit, Manhattan) held that the NSLs violated both 1st Amendment free speech guarantees and 4th Amendment protection against unreasonable searches. This ruling not only applied to parts of the Patriot Act but the earlier enabling legislation as well. This prompted Congress to amend the law to allow a NSL recipient to challenge the demand for records and the gag order. In 2007, Mr. Merrill won the ACLU’s Roger Baldwin ‘Medal of Liberty’ which they had to award to an empty chair due to the constraints of the gag order still in place. In 2008, while the case was known as Doe v. Mukasey, there was another step forward toward civil liberty when Judges Jon Newman, Guido Calabresi and (future Supreme Court Justice) Sonia Sotomayor sitting for the 2nd Circuit Court of Appeals held that it was up to the FBI, and not the recipient of the letter, to initiate judicial review of any gag order and that a high-ranking official’s statement to a court that disclosure may endanger national security or interfere with diplomatic relations cannot be treated as “conclusive” proof that a gag order must be issued. In 2009, the Obama Administration choose not to appeal this ruling to the Supreme Court when the DOJ and FBI suddenly decided they didn’t need the information from Mr. Merrill’s company, Calyx. On August 10, 2010, after more than six years of litigation, Nicholas Merrill was partially released from his gag order and allowed to reveal his identity. He still cannot reveal what information the FBI sought from him.* The result of this case not only allowed for challenge to the gag orders, but it shifted the burden of proof to the government. The FBI is now required to prove in court that disclosure of an NSL would harm a national security case.
Like the early stages of Merrill’s case, right now we do know know who the plaintiff is in the case before Judge Illston. The gag order holds pending the 90 day stay of judgement although there is speculation that the plaintiff is San Francisco based cell phone provider Credo. The briefs were filed under John Doe by the EFF (Electronic Frontier Foundation). As a reminder, these filings were made based upon 1st Amendment grounds. Firstly, that the gag order provision amounted to unconstitutional prior restraint and, secondly, that the NSL statute itself “violates the anonymous speech and associational rights of Americans” by forcing companies to hand over data about their customers. The FBI and DOJ, instead of responding to the challenge by filing a motion to compel compliance in they responded to challenges challenges, they opted for a different strategy. DOJ attorneys instead filed a lawsuit against the John Doe telecom based on the argument 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.” In other words, their argument was no one could challenge the underlying NSL laws, only the provisions of the gag orders that go with a specific NSL. This is an extremely arrogant argument on behalf of the Executive, but one Judge Illston disagreed with in finding in favor of the plaintiff.
A battle for 1st Amendment has been won, surely, but battles don’t win a war.
Is this the end of the story? Most certainly not. Do you think the government and industry will comply with this ruling or continue the violation of citizen’s rights as if it is “business as usual”? What do you think will happen on appeal to the 9th Circuit Court of Appeals? On appeal to SCOTUS if it should go that far? Do you think actions like this could be used as leverage to force the repeal and/or further revision of the Patriot Act?
What do you think?
____________
* Ed. Note: Merrill went on to found the nonprofit Calyx Institute which focuses on providing education and research on privacy issues.
On a personal note, whatever company went to bat over this issue? I know where I’m getting my next cell phone.
Source(s): Wired (1, 2), Huffington Post, New York Times, Wikipedia, Law.com
~submitted by Gene Howington, Guest Blogger
Excellent job Gene. It is amazing how far we have fallen since 9/11. I think al-Qaeda won after all.
G.Mason, any ideas on how to save it???
We have had 12 years of George Bush.
Our govt has become one of Tyranny and Lies.
Our President and his administration simply cannot be trusted. We have become a nation of evil.
We either save this country or it will collapse into a Corporatocracy Police State
Gene,
We’re on the same page.
http://en.wikipedia.org/wiki/Mark_Fuhrman
Mark Fuhrman said that once you’ve written a warrant for cell phone records, you’ve written all of them. He said it takes about fifteen minutes.
I think OJ was guilty. To the best of my knowledge, OJ is still in Nevada.
“Special Agent In Charge. How long do you think it will take them to sign a piece of paper?”
It depends, Matt. If they have a pen in their pocket? Only slightly less time than if they have to look for one.
Last night on C-SPAN they aired a Press Council interview with Thomas Drake. He was a former National Security Adminsitration higher up who ratted out the government for fraud and waste. They prosecuted him for national security offenses. If you go to the C-SPAN web site you can look up prior shows and watch them. This is called NSA Whistle Blower, Thomas Drake. It aired on March 15 and is still available. Watch it.
NSLs have been controversial from the start as they did not require court approval and they come with a built-in gag order that prevents recipients from disclosing to anyone that they have even received an NSL. FBI agents essentially self-issue an NSL with only the only oversight being a sign-off from the Special Agent in Charge of their office. There is no judicial oversight, no proof required, just the mere assertion by the Executive controlled FBI that the information is “relevant” to an investigation into international terrorism or clandestine intelligence activities and their own Executive generated approval.
———————————————————————
Special Agent In Charge. How long do you think it will take them to sign a piece of paper?
We prosecuted Judges and prosecutors from the German Nazi government at our Nuremburg War Tribunals.
We made an international standard henceforth.
We were the Exceptional nation back then. America stood up for human rights.
Now Amerika stands up for tyranny.
Research the 1933 Parallels which I often reference on this blog. Google: The Reichstag Fire Decree. Google: The Judges Trial at Nuremburg.
Hotsie totsie, I smell a Nazi.
– Curley on the Three Stooges.
I don’t hold out a lot of hope.
*****
Supreme Court shields warrantless eavesdropping law from constitutional challenge
The five right-wing justices hand Obama a victory by accepting his DOJ’s secrecy-based demand for dismissal
Glenn Greenwald
guardian.co.uk, Tuesday 26 February 2013
http://www.guardian.co.uk/commentisfree/2013/feb/26/supreme-court-eavesdropping-law-doj-argument
Excerpt:
The Obama justice department succeeded in convincing the five right-wing Supreme Court justices to dismiss a lawsuit challenging the constitutionality of the 2008 law, the FISA Amendments Act, which vastly expanded the government’s authority to eavesdrop on Americans without warrants. In the case of Clapper v. Amnesty International, Justice Samuel Alito wrote the opinion, released today, which adopted the argument of the Obama DOJ, while the Court’s four less conservative justices (Ginsberg, Breyer, Sotomayor and Kagan) all dissented. This means that the lawsuit is dismissed without any ruling on whether the US government’s new eavesdropping powers violate core constitutional rights. The background of this case is vital to understanding why this is so significant.
One of the most successful government scams of the last decade has been to prevent any legal challenges to its secret surveillance programs. Both the Bush and Obama DOJ’s have relied on one tactic in particular to insulate its eavesdropping behavior from judicial review: by draping what it does in total secrecy, it prevents anyone from knowing with certainty who the targets of its surveillance are. The DOJ then exploits this secrecy to block any constitutional or other legal challenges to its surveillance actions on the ground that since nobody can prove with certainty that they have been subjected to this eavesdropping by the government, nobody has “standing” to sue in court and obtain a ruling on the constitutionality of this eavesdropping.
AP,
I found that story about the Inspector General while looking into this, but there was no good way to work it into the story other than as a footnote. Thanks for introducing it to the discussion.
“The IG found that the employees let FBI agents illegally look at customer records without paperwork and even wrote NSLs for the FBI.” -from the following article
Google Says the FBI Is Secretly Spying on Some of Its Customers
By David Kravets
03.05.13
http://www.wired.com/threatlevel/2013/03/google-nsl-range/
“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 to station 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.”
http://www.workingassets.com/
“That company, Working Assets Inc., runs a San Francisco-based telecom subsidiary called Credo, and uses some of its revenue to support liberal causes. The chief executive of Credo, Michael Kieschnick, offered his firm’s view, in general terms, of these types of government requests. “There is a tension between privacy and the legitimate security needs of the country,” he said. “We think it is best to resolve this through grand jury or judicial oversight.” WSJ We used Working Assets for phone service a long time ago, but now just have their cc’s.
Google’s Report on NSLs: What we still don’t know
By Alexander Abdo, Staff Attorney, ACLU National Security Project at 10:44am
http://www.aclu.org/blog/national-security-technology-and-liberty/googles-report-nsls-what-we-still-dont-know
“…secrecy is the name of the game. Secret government surveillance is difficult to hold to account. Unless we as Americans insist that the government release basic information about what its surveillance powers authorize and how it is using those powers, there is little reason to believe that the surveillance abuses of the past will not be repeated.
Google should be applauded for its efforts to date. We hope this is just the beginning of a trend.”
On a personal note, whatever company went to bat over this issue? I know where I’m getting my next cell phone. -Gene Howington
Yep.
“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. -Wired, see below
http://www.wired.com/threatlevel/2013/03/nsl-found-unconstitutional/
“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, but did release a statement following Illston’s ruling.
“This ruling is the most significant court victory for our constitutional rights since the dark day when George W. Bush signed the Patriot Act,” Kieschnick said. “This decision is notable for its clarity and depth. From this day forward, the U.S. government’s unconstitutional practice of using National Security Letters to obtain private information without court oversight and its denial of the First Amendment rights of National Security Letter recipients have finally been stopped by our courts.”
If NSLs are being used to stop people like Timothy McVeigh, the Colorado Movie shooter, Sandy Hook shooter, white collar perpetrators, preventing gangs from doing drive-by-shootings, etc. from transpiring, then I am all for NSLs. However, I think that the government is using NSLs for something else: Preventing a Revolution from occuring (their greatest threat is a Revolution).
Everything else is just window dressing?
It is great news, but the FBI did this for many years without any such law. In fact, one of the leading members of the anti-Vietnam war movement in Hartford, CT had their bank records requested by the FBI. Since they were quite wealthy and influential in the city, the bank decided to not co-operate and told the Butterworths about the FBIs action. For smaller fry I would be willing to bet that the FBI got those records without question in most cases.
Do you really expect the Eric Holder DOJ, which only enforces the laws it likes, to obey this ruling? They will simply ignore it. It reminds me of the WWII joke in which a German says to a Swiss, “Why do you need an Admiralty? Switzerland is landlocked.” The Swiss replied, “In that case, what are you Germans doing with a Ministry of Justice?” The same joke could be aimed at Holder’s DOJ.
Wasn’t this wonderful news? But the higher courts won’t let it stand. They’ll leave it, even if they have to switch around the definitions of words, or rename them. Kind of like they call illegal stuff that shouldn’t be mandatory, taxes. Same type deal. But at least a few judges are still calling them correctly!