FBI’s National Security Letter gag orders violate 1st Amendment, ruled unconstitutional

On Friday, a federal judge in the Ninth Circuit Court ruled that gag orders accompanying National Security Letters are unconstitutional!

U.S. District Judge Susan Illston ordered the FBI to stop issuing unconstitutional “spying orders” aka National Security Letters (NSLs) and to stop enforcing the gag orders that go along with them. The EFF explained that “the court held that the gag order provisions of the statute violate the First Amendment and that the review procedures violate separation of powers. Because those provisions were not separable from the rest of the statute, the court declared the entire statute unconstitutional.” Judge Illston stayed the order for 90 days, giving the government time to appeal, which it will undoubtedly do.

A NSL is not signed by a judge because it is written by the FBI as an administrative subpoena; it comes with a gag order forbidding the recipient from telling the person about whom it was issued. With a NSL, the government can demand banking and credit information or phone and email records as in finding out just exactly who the target talks to or interacts with financially. According to the 2011 FISA report, the FBI issued 16,511 NSLs in 2011, affecting 7,201 citizens.

One of the problems with NSLs is that the Founding Fathers inked in all those pesky Constitutional requirements that protect your rights such as the First Amendment and even the Fourth Amendment which gives you rights like “you must be suspected of wrongdoing before the government searches your private records.” The ACLU previously said, “With a National Security Letter, the FBI can go directly to a bank or internet service provider and compel them to turn over records on people who are not even suspected of having terrorist ties.” The FBI was given even more power to use/abuse NSLs under the Patriot Act. “Of the dangerous government surveillance powers expanded by the Patriot Act,” the EFF has called NSLs the “one of the most frightening and invasive.”

The government enforces the NSL gag by claiming that talking about it “may endanger national security,” so it comes as no surprise that that the government argued that the Court did “not have jurisdiction to consider the Petitioner’s constitutional challenges to the NSL nondisclosure provisions.” The Court disagreed. The “FBI has been given the unilateral power to determine, on a case-by-case basis, whether to allow NSL recipients to speak about the NSLs,” but Judge Illston pointed out that the government’s own estimates are that 97% of NSLs come with a nondisclosure order. She wrote, “The nondisclosure provision clearly restrains speech of a particular content-significantly, speech about government conduct.”

Judge Illston wrote [PDF]:

This pervasive use of nondisclosure orders, coupled with the government’s failure to demonstrate that a blanket prohibition on recipients’ ability to disclose the mere fact of receipt of an NSL is necessary to serve the compelling need of national security, creates too large a danger that speech is being unnecessarily restricted.

The EFF represented a telecommunications company that has not been publicly named in a lawsuit challenging a NSL. EFF Legal Director Cindy Cohn said, “The First Amendment prevents the government from silencing people and stopping them from criticizing its use of executive surveillance power. The NSL statute has long been a concern of many Americans, and this small step should help restore balance between liberty and security.”

EFF Senior Staff Attorney Matt Zimmerman added, “The government’s gags have truncated the public debate on these controversial surveillance tools. Our client looks forward to the day when it can publicly discuss its experience.”

The decision follows on the heels of Google releasing generalized NSL data in its newest transparency report. Nick Merrill, who intends to start a surveillance-free ISP with end-to-end encryption, previously fought against an NSL and the accompanying gag order, and won. Judge Illston did not fully agree with the way the Second Circuit previously handled the NSL issue by rewriting the law. She said it’s Congress that rewrites laws, not the courts. While this doesn’t necessarily mean “ding dong, the wicked NSL witch is dead,” if the decision is upheld by the Ninth Circuit Court of Appeals, it could mean that the NSL issue is headed for the Supreme Court.

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