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EFF Challenges National Security Letter

Posted by Soulskill on from the letter-of-the-law dept.

sunbird writes "The Electronic Frontier Foundation filed a lawsuit in the United States District Court in San Francisco on behalf of an anonymous petitioner seeking to challenge a National Security Letter (NSL) the petitioner had received. NSLs are issued by law enforcement with neither judicial oversight nor probable cause, and have been discussed on Slashdot before. In response to the lawsuit, the U.S. Department of Justice filed a separate lawsuit against the individual who had received the NSL, requesting that the court order the recipient to comply with the NSL and asking the court to find that the 'failure to comply with a lawfully issued National Security Letter interferes with the United States' vindication of its sovereign interests in law enforcement, counterintelligence, and protecting national security.' Both cases are filed under seal, but heavily-redacted filings are available. The cases remain pending."

12 of 153 comments (clear)

  1. God Bless America! by fuzzyfuzzyfungus · · Score: 5, Interesting

    We've managed to reinvent the Lettre de cachet!

    1. Re:God Bless America! by Yvanhoe · · Score: 4, Insightful

      From France, I wish you a happy revolution.

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    2. Re:God Bless America! by Anonymous Coward · · Score: 4, Funny

      From France, I wish you a happy revolution.

      Care to help again?

    3. Re:God Bless America! by Baloroth · · Score: 4, Interesting

      The main difference being NSLs are pretty much not legally enforceable and have, in fact, been ruled against by courts in the US in the past as unconstitutional. Basically, they only "force" they bear is that companies haven't really protested against them, for the most part, finding it easier to simply hand over the information. Also, they can only request partial, non-content records (e.g. "party A dialed party B"). Still probably illegal, but less so.

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    4. Re:God Bless America! by GameboyRMH · · Score: 4, Funny

      Promise you won't make jokes about them afterwards this time and maybe they'll agree.

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      "When information is power, privacy is freedom" - Jah-Wren Ryel
    5. Re:God Bless America! by GNious · · Score: 4, Funny

      Thank you, mon ami. I'll have you know that last weekend, we celebrated Bastille Day by eating French Toast.

      Thought that was from Germany

      French Fries

      Those are dutch-belgian..

      French Dip roast beef sandwiches

      ...invented in Los Angeles

      French Bread baguette

      That just seems redundant!

      But you got pretty close, so points for now being Canadian!

  2. Lawful my ass by mr1911 · · Score: 4, Interesting

    Department of Justice filed a separate lawsuit against the individual who had received the NSL, requesting that the court order the recipient to comply with the NSL and asking the court to find that the 'failure to comply with a lawfully issued National Security Letter interferes with the United States' vindication of its sovereign interests in law enforcement, counterintelligence, and protecting national security.'

    NSLs are issued by law enforcement with neither judicial oversight nor probable cause

    Time for the supreme court to strike NSLs down.

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    1. Re:Lawful my ass by HarrySquatter · · Score: 4, Informative

      He can't because the Consitution actually says:

      In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

      This isn't a dispute between states nor does it involve ambassadors, etc. so it falls under the apellate jurisdiction which is subject to Congress' regulation. This is fromArticle 3 section 2.

  3. No such thing by Hatta · · Score: 4, Informative

    No NSL is legally issued. They are searches without judicial oversight, and prior restraints on free speech. In violation of amendments 4 and 1. Anyone who made an oath to uphold the constitution would be breaking it if they enforced or issued a NSL in any way.

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    1. Re:No such thing by Hatta · · Score: 4, Informative

      I am fairly certain the impugned rights are from the 5th and 14th Constitutional Amendments, and in particular the Due Process Clause.

      Those too.

      There does not appear to be any restraint on speech on these facts.

      NSLs come with a gag order.

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  4. Re:Good thing the Court is in the USA by guibaby · · Score: 4, Interesting

    To your Article 3 Section 2 argument I raise you Marbury v. Madison.

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  5. Where's PJ when we need her? by Zinho · · Score: 4, Interesting

    I read through a couple of the documents (first and last), and it seems that the FBI lawyers either don't get it or are being intentionally evasive about the issues. Their first-amendment counter-arguments, though, seem to boil down to the following:

    * The phone records aren't protected by the first amendment because the parties that want to talk are in a business relationship.
    * This censorship isn't harming the company or the subscriber because even if the NSL were public the company wouldn't lose any customers over it. The FBI is sending these letters to everyone, and everyone else is complying, so it's not like the customer can switch providers to get away from it.
    * The FBI is interested in the call logs to see who the subscriber is associating with, but this isn't 1960's Alabama, and the customer isn't a member of the NAACP with KKK looking to burn crosses on their lawn as soon as the membership list goes public - the EFF hasn't shown that a specific harm will come to the phone company or the customer as a result of providing the information requested or keeping quiet about it being provided.

    The "doesn't get it" part is that the FBI seems intent on ignoring the gag order parts of the NSL in favor of arguing "we totally have a right to that information, and you have no right to keep it from us". It's just amazing, though, that they're able with wide-eyed innocence to ask "what's the harm?" to the judge, as if they were not actively looking to deprive someone of their liberty or life based on associations they'd discover with this request. I guess in their mind that it's OK because it's the FBI instead of the KKK that's doing it - national security and all that. Oh, and the "we're harming everyone the same way, so this specific instance is OK" stance is mind-boggling, too.

    Perhaps there's other documents I haven't read that deal with that separately; the most recent filing was a request to compel compliance. I'm sure I'm missing lost of fun details, and that someone with more legal experience could poke more holes in this; it's cases like these that need a running commentary by someone like PJ from Groklaw...

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