National Security Letters Ruled Unconstitutional

bill of rightsby 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,

~submitted by Gene Howington, Guest Blogger

44 thoughts on “National Security Letters Ruled Unconstitutional”

  1. Surprised you guys aren’t watching the game like everyone else. Thanks for the links and great discussion. There’s more news here in the comments than you’ll find on just about any MSM show.

  2. Tony C.
    You are correct about the MSM. They gave up investigative reporting for the almighty corporate buck long ago.

  3. For the record, I’m consistently critical of anyone wanting to whiz on the Constitution and/or our civil rights but especially when their financial interests are tied up into turning this into a fascist police state. Their party affiliation is meaningless to me. That story always ends badly for everyone . . . but especially for the fascists themselves. Even the ones that manage to avoid the pitchforks and lamp posts are judged villains by history. Ask Mussolini, Hitler, McCarthy, Franco, any member of the Bush crime family, Cheney, the Koch Brothers, . . . or Obama.

    Sociopaths and psychopaths belong in institutions, not in public office.

    I don’t care if they dress like Donald Duck and run as a member of the Cartoon Party.

  4. The MSM has been captured by money; if they criticize the government too heavily, the government stops giving them interviews and information and statements under the table; the infamous “senior White House Official” that is such a blabber mouth. Just look at David Gregory’s leaked email to a politician in hot water that in exchange for a “Meet The Press” exclusive offered to only ask questions pre-approved by that politician, and assured them it would be a positive experience. As long as MTP was first. Because that would mean a ratings boost and a scoop that really does influence advertisers that are just looking to buy eyeballs, they don’t care if the show is despicable, hypocritical, exploitive, corrupt, deceptive, or in thrall to Washington DC, as long as that grime doesn’t get on them.

  5. Bob,

    Politically speaking…. What is hypocritical to one is a regular course of doing business for others….

  6. Elaine,

    I agree with you… Not all are…. It’s a good question why reasonably intelligent folks don’t question the civil liberties being shaken out of the constitution as we speak…. The days of justice Jackson are long gone at what presently on he sct….. Not only was he the former AG…. Before being appointed to the Sct…. But if I recall he was also the special prosecutor at Nuremberg…… About the same time….

  7. AY,

    Not all Democrats are hypocrites.

    I have to admit that I’m surprised that more Americans aren’t concerned about National Security Letters, the Patriot Act, indefinite detention, drone strikes. I also wonder why the MSM doesn’t have its collective knickers in a twist about these issues.

  8. AY,

    I hear ya. The way I see it, you can hit republicans with a rolled up newspaper to show them the error of their ways, but would a hypocrite ever admit to being wrong?

  9. Bob,

    You know I agree with hat you’ve said in totality…. Too bad people fail to see the truth…. I’m no fan of W….. And many folks aren’t….. Pert near every democrat I knew at he time blasted W for his stance….. Now that its no longer W wizzing on the Constitituon…. And it’s a democrat in office… They have lessened the rancor…. But say nothing….. I hear you and I am offended that they don’t have the same take…. They are hypocrites….. They are known …. Whether we know the names or not… They know who they are….

  10. Bob,

    Only if you like exploring the depth and breadth of the possibilities for shades of blue.

  11. Gene,

    Thanks for the vigilance. Since the Republicans don’t care about this issue and the Democrats have proven their hypocrisy by only caring when a Republican president is urinating on the constitution, should I hold my breath that this matter will ever be resolved in a just manner?

  12. Three cheers for EFF! Without them and the Institute of Justice we’d surely be back in the age of Cromwell.

  13. 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?
    Some devisions or companies may resist this decision … especially outside the 9th Cir.

    On appeal in the 9th Cir it will depend on the panel of judges. NeoCons have been appointed (e.g. Bybee).

    If it goes to SCOTUS under an affirmation, it could be at risk if a more liberal panel is selected and they affirm … probably 50-50 chance of being upheld in SCOTUS.

    It would be great if this direction continues and the so called Patriot Act is repealed.

  14. From Elaine’s link/posting:

    ….”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.”

    Is there a yearly Orwell award? Kind’a like the Darwin awards but … different.

    That SCOTUS lets the DOJ get away with this, actually embraces it, is a shame on this country. History will not treat this SCOTUS well. The conservative majority is a threat to the Constitution and the nature of our democracy.

  15. The Reichstag Fire Decree and the copycat Patriot Act. The Nazi Party is alive and well. From wikipedia:

    On February 27, 1933, the German parliament (Reichstag) building burned down due to arson. The government falsely portrayed the fire as part of a Communist effort to overthrow the state.
    Using emergency constitutional powers, Adolf Hitler’s cabinet had issued a Decree for the Protection of the German People on February 4, 1933. This decree placed constraints on the press and authorized the police to ban political meetings and marches, effectively hindering electoral campaigning. A temporary measure, it was followed by a more dramatic and permanent suspension of civil rights following the February 27 burning of the parliament building.
    Though the origins of the fire are still unclear, in a propaganda maneuver, the coalition government (Nazis and the German Nationalist People’s Party) blamed the Communists. They exploited the Reichstag fire to secure President von Hindenburg’s approval for an emergency decree, the Decree for the Protection of the People and the State of February 28. Popularly known as the Reichstag Fire Decree, the regulations suspended the right to assembly, freedom of speech, freedom of the press, and other constitutional protections, including all restraints on police investigations.

    Justified on the false premise that the Communists were planning an uprising to overthrow the state, the Reichstag Fire Decree permitted the regime to arrest and incarcerate political opponents without specific charge, dissolve political organizations, and to suppress publications. It also gave the central government the authority to overrule state and local laws and overthrow state and local governments.
    The Nazi press described the Reichstag fire as the work of the Communists and a signal for their planned uprising. Even the U.S. independent Fox Movie Tones newsreel reflected the German government version. Although the Communists had not, in fact, developed any plans for an uprising, the impact of propaganda and terror on existing fears of a Communist takeover convinced many Germans that Hitler’s decisive action had saved the nation from “Bolshevism.”
    Within months, for example, the Nazi regime destroyed Germany’s previously vigorous free press. By 1941, the Nazi Party’s Eher publishing house had become the largest ever in German history, and its main daily newspaper, the Völkischer Beobachter (The National Observer) had reached a circulation of over 1,000,000.
    -end of wiki article

    The parallels are striking are they not?

  16. Gene, excellent article and excellent news but I have no faith in SCOTUS. I suspect we should enjoy this victory while its on the books.

    I was going through some of my bookmarks and came across this, I was considering deleting it since my bookmarks are getting out of hand but didn’t. How often does one have occasion to post about something like administrative subpoena’s? Everybody has their thumb in the ‘Court’s? We don’t need no stinkin’ court’s!’ pie.

    Administrative subpoena’s are the stepsister of the NSL’s also allowing a traditional legal instrument previously requiring a judicial act to be done by a bureaucrat. The law also allows for judicial remedy for non-compliance (contempt as well as an enhanced contempt penalty and various agency specific remedies and punitive actions) to leverage compliance.

    This is an old document 2001 but I haven’t really read anything that indicates that the scope of authority has been restrained since I found it a few years ago. A couple of relevant sections have been noted:

    U.S. Department of Justice

    Report to Congress on the Use of Administrative Subpoena
    Authorities by Executive Branch Agencies and Entities


    A. General Subpoena Authorities Held by the Various Agencies

    1. Description of the Sources of Administrative Subpoena Power and the Scope of Such Subpoena Authority.

    ….”The Supreme Court has construed administrative subpoena authorities broadly and has consistently allowed expansion of the scope of administrative investigative authorities, including subpoena authorities, in recognition of the principle that overbearing limitation of these authorities would leave administrative entities unable to execute their respective statutory responsibilities.9 While an agency’s exercise of administrative subpoena authority is not subject to prior judicial approval, a subpoena issuance is subject to judicial review upon a recipient’s motion to modify or quash the subpoena or upon an agency’s initiation of a judicial enforcement action.

    Federal courts subject the exercise of administrative subpoena authority to a reasonableness analysis, not the more stringent Fourth Amendment “probable cause” analysis applied in situations involving search and seizure and issuance of a warrant. In United States v. Powell,10 the Court articulated the deferential standard for judicial review of administrative enforcement actions in a four-factor evaluation of “good faith” issuance, requiring that: (1) the investigation is conducted pursuant to a legitimate purpose, (2) the information requested under the subpoena is relevant to that purpose, (3) the agency does not already have the information it is seeking with the subpoena, and (4) the agency has followed the necessary administrative steps in issuing the subpoena.11 The federal courts have construed the Powell factors broadly, allowing greater flexibility for government action. ”

    There is a section that lists all of the agencies that posses the power (any agency with an Attorney General is the rule of thumb) and any specific regulatory or legal authority that applies thereto. It’s:

    Appendix A1:
    Administrative Subpoena Authorities Held by Agencies
    Other Than the Departments of Justice and Treasury

    [Long list follows]

    [Department of Education? Really?]

  17. It is amazing how far we have fallen since 9/11. I think al-Qaeda won after all. -rafflaw

    Thanks for saying it. I have to agree.

    And America doesn’t know the worst of it yet.

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