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Court Nixes National Security Letter Gag Provision

Posted by kdawson on from the speak-we-will dept.

2phar sends news that on Monday a federal appeals court ruled unconstitutional the gag provision of the Patriot Act's National Security Letters. Until the ruling, recipients of NSLs were legally forbidden from speaking out. "The appeals court invalidated parts of the statute that wrongly placed the burden on NSL recipients to initiate judicial review of gag orders, holding that the government has the burden to go to court and justify silencing NSL recipients. The appeals court also invalidated parts of the statute that narrowly limited judicial review of the gag orders — provisions that required the courts to treat the government's claims about the need for secrecy as conclusive and required the courts to defer entirely to the executive branch." Update: 12/16 22:26 GMT by KD : Julian Sanchez, Washington Editor for Ars Technica, sent this cautionary note: "Both the item on yesterday's National Security Letter ruling and the RawStory article to which it links are somewhat misleading. It remains the case that ISPs served with an NSL are forbidden from speaking out; the difference is that under the ruling it will be somewhat easier for the ISPs to challenge that gag order, and the government will have to do a little bit more to persuade a court to maintain the gag when it is challenged. But despite what the ACLU's press releases imply, this is really not a 'victory' for them, or at least only a very minor one. Relative to the decision the government was appealing, it would make at least as much sense to call it a victory for the government. The lower court had struck down the NSL provisions of the PATRIOT Act entirely. This ruling left both the NSL statute and the gag order in place, but made oversight slightly stricter. If you look back at the hearings from this summer, you'll see that most of the new ruling involves the court making all the minor adjustments that the government had urged them to make, and which the ACLU had urged them to reject as inadequate."

19 of 128 comments (clear)

  1. Wow... by Darundal · · Score: 4, Insightful

    ...this is one of the few steps that has been taken in a long time that makes me feel the whole "land of the free" thing.

    1. Re:Wow... by slashdotlurker · · Score: 4, Insightful

      You are right. The courts are just "grabbing" back the power that was given to them by one of those pesky Bill of Rights thingies.

    2. Re:Wow... by Anonymous Coward · · Score: 5, Insightful

      Apparently you are unfamiliar with the whole "separation of powers" concept. It always was the of the judicial branch to review the actions of the executive branch.

      Legislative Branch: Create/Modify laws
      Judicial Branch: Review/Interpret laws
      Executive Branch: Enact/Enforce laws

      The NSLs were one case where the Executive branch was deciding for themselves what was and wasn't legal. That's bullshit.

    3. Re:Wow... by Shadow+of+Eternity · · Score: 4, Insightful

      Except nowadays people think that's a bad thing because instead of checks and balances it's called "activist judges".

      --
      A bullet may have your name on it but splash damage is addressed "To whom it may concern."
    4. Re:Wow... by immcintosh · · Score: 4, Insightful

      I don't think you should be describing it as a "power grab" when the system was supposed to work this way in the first place.

  2. no kidding. by SinShiva · · Score: 5, Informative

    "We are gratified that the appeals court found that the FBI cannot silence people with complete disregard for the First Amendment simply by saying the words 'national security,'" said Melissa Goodman

    1. Re:no kidding. by zappepcs · · Score: 4, Insightful

      Now, 250 million Americans should be writing to the Obama organization and asking why the fuck it was allowed in the first place and what is HE going to do about it... in the next 12 months, not how will he leave it to the next election.

      --
      Support NYCountryLawyer RIAA vs People
    2. Re:no kidding. by zappepcs · · Score: 4, Insightful

      Yes, as a junior senator, voting is something you can do about not letting it get worse. He's president elect now and has the ear of everyone in the beltway and the world.... so.... what is he going to DO about it? He can't vote against it anymore in the Senate. Where will his veto votes be spent? It's a nice history, that, but what is his plan to fix the problems. So many promises are broken on the day after inauguration. What is Mr Obama's plan going forward?

      --
      Support NYCountryLawyer RIAA vs People
    3. Re:no kidding. by icebrain · · Score: 5, Insightful

      Obama's position on civil liberties is clear. He doesn't believe in them any more than Bush did.

      His positions on liberties and freedoms are like those of most politicians. They all promote freedom to do "harmless" stuff, because it's not a threat to them or their power. But it's very rare to find one who promotes the "dangerous" ones. Being able to speak freely about and criticize the government (and call them on it when they screw up), habeas corpus, keeping and bearing arms, the right to privacy (both physical searches and observation)... those are ones that keep the government from exercising absolute control. There's a reason those things are the first things mentioned in the bill of rights, and in very clear terms; they knew the government would sooner or later try to restrict that.

      --
      The meek may inherit the earth, but the strong shall take the stars.
  3. Does this only apply in the 2nd district for now? by Dr.+Manhattan · · Score: 4, Interesting

    Since it was the U.S. Court of Appeals for the Second Circuit, does this ruling only apply in New York, Vermont, and Connecticut?

    --
    PHEM - party like it's 1997-2003!
  4. great news by Anonymous Coward · · Score: 5, Insightful

    Well, congratulations America.
    It is very nice to see a resurgence of freedom in your country.

    The question/task for the future is to figure out how to prevent this sort of abuse from happening again.
    It has been somewhat disturbing to see how easily your executive can disregard your highest laws with impunity only to have their actions repealed years later.

    I mean, it is nice to have a constitution that declares things like a right to free speech and habeus corpus (or however that is spelled) but if the government can break that law for years without any legal sanction then is it anything but an empty statement of principles?

    George Bush has proven that the American constitution has no teeth.
    If an American president decides to break the law (any law) they cannot be stopped or punished in any way. The most that can happen is that they will be asked to stop... usually long after they have finished anyway.

    Short of kidnapping white women is there anything your president cannot do? will your police forces EVER do anything to stop a president from breaking a law?
    The answer seems to be no.

    1. Re:great news by adrenaline_junky · · Score: 4, Interesting

      The President swears to uphold the Constitution, but what if he chooses not to?

      As you point out, the worst that happens is the court eventually overrules, but often the damage has already been done and the President can just try again in a slightly modified way.

      Is such disregard for the Constitution treason?

      At the very least it is an impeachable offense, but only if congress has the will to impeach.

    2. Re:great news by johnsonav · · Score: 5, Interesting

      The question/task for the future is to figure out how to prevent this sort of abuse from happening again. It has been somewhat disturbing to see how easily your executive can disregard your highest laws with impunity only to have their actions repealed years later.

      Actually, this is how we prevent it from happening again. And, to be fair, it wasn't the executive abusing power. He was given it by the congress.

      Congress passes all kinds of laws which are later found to be unconstitutional by the court. The ultimate check, in our system, on the congress and president is the judiciary. How would you do it?

      George Bush has proven that the American constitution has no teeth.

      This case is an example of those teeth. Is it as timely as I would like? No. But I would rather have the correct decision after a well reasoned and thought out case, than a quick gut reflex (which is the role the congress usually plays). Assuming this decision is upheld on appeal, its now basically part of the constitution. I don't want that to be too easy or quick.

      --
      ... and that's when the C.H.U.D.'s came at me.
    3. Re:great news by johnsonav · · Score: 5, Insightful

      The President swears to uphold the Constitution, but what if he chooses not to?

      He's impeached, or his actions are ruled unconstitutional, as in this case. What do you want, a coup? Sadly, these kinds of decisions are too important to undertake quickly.

      As you point out, the worst that happens is the court eventually overrules, but often the damage has already been done and the President can just try again in a slightly modified way.

      But what remains is a more fleshed out interpretation of the constitution. After this case, these actions are explicitly unconstitutional. It should be harder for the congress and president to overreach. But you're right, you can't undo the damage. But impeachment could stop him from trying again.

      At the very least it is an impeachable offense, but only if congress has the will to impeach.

      Impeachment isn't supposed to be easy. How else do you minimize the chances the impeachment isn't politically driven, but to make it hard enough that a consensus is reached on both sides of the aisle.

      --
      ... and that's when the C.H.U.D.'s came at me.
    4. Re:great news by vux984 · · Score: 4, Insightful

      But who decides what's unconstitutional?

      The supreme court.

      The Supreme Court has explicitly reversed itself a number of times.

      I don't really see how that's an actual problem. Firstly, it really doesn't happen -that- often. Secondly, if the court rules against something, and a congressman loses his job, and then down the road the supreme court reverses itself... in the big scheme of things what was the harm?

      Remember, the congressman sponsored a law that he SHOULD have at least known had a good probability of being challenged in the supreme court, and a good estimation of how it would fare there, and he knew what the consequences were of it not passing. He made an INFORMED decision whether to gamble on it.

      Seriously, I can live with that.

      Besides, if anything, congress really shouldn't be passing laws that have even a reasonable CHANCE of being overturned in the supreme court. I don't really want laws that run "right up the line" either. If you are considering a bill and your lawyers and advisers are calculating it will probably be challenged, and that if challenged that 4 supreme justices will side with it, and 4 probably won't, and it will comes down to how Ginsberg is going to interpret the definition of X...then hey, maybe its not a very good law to gamble your career on! It probably should be reworked a bit so that it will sail through the supreme court.

      As a bonus we'd also have fewer supreme court reversals as fewer laws would be proposed that tried to squeak up against the line without crossing it. Congress would be motivated to give the constitution some "space", which is a good thing.

      To use a /. car analagy... if the legal limit on drunk driving is 0.08, and you know you lose your license if you get caught with that... well, you don't drink up to 0.079 and then hop into your car. You make damned sure you are comfortably away from blowing over. You don't want to blow 0.081 in a breathalyzer, and then squeak out of a DUI via a more precise blood test administered at the police station. Better to just keep yourself well below the legal limit and sail through.

    5. Re:great news by johnsonav · · Score: 4, Insightful

      I see you're point. But instead of enacting a law, with technicalities and loopholes, we, the voters, should be the ones removing the congressmen from office. The two (or six) years between elections is usually less time than it takes for a case to be appealed up to the Supreme Court. And it doesn't require a constitutional amendment that these congressmen would never vote for.

      If we, the citizens, want to protect the constitution, then we should step up and take responsibility for defending it from our politicians.

      --
      ... and that's when the C.H.U.D.'s came at me.
  5. Re:Does this only apply in the 2nd district for no by Blindman · · Score: 4, Informative

    Technically speaking, yes. However, any circuit court or district court (in another circuit) will either follow this decision or explain why this decision is wrong. This ruling does make a contrary result in another circuit somewhat less likely.

    --
    I don't practice what I preach because I'm not the kind of person that I'm preaching to.
  6. Very few people could actually handle the order... by erroneus · · Score: 4, Funny

    ...in my experience, very few people have no gag reflex. Therefore, I believe the requirement was unconstitutional and unnatural.

  7. There is nothing magical about our Constitution. by khasim · · Score: 4, Insightful

    It is not the American Constitution that has no teeth, it is the American people and I say this as an American. I am disgusted with how sad, feeble, and pathetic the average American is and how unwilling they are to fight for anything.

    And the Congress Critters are elected from those same Americans.

    Some of them are good. I'm in Washington state and all of my Congress Critters voted against the telcom immunity. And I voted for them again.

    But the Constitution does not have any magical power to protect us. It is a statement that WE must support. Our forefathers died for those words.

    Now, our Congress Critters won't even risk re-election to uphold them. Hell, they won't even risk the CHANCE that their opponents might say something mean about them.

    Which is why Congress's approval rating is even lower than Bush's.

    Get educated. Get organized. Then hold your Congress Critters accountable for their votes and their absences. That's the only way to get real change.