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.
~submitted by Gene Howington, Guest Blogger