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National Security Letters Ruled Unconstitutional, Banned

Posted by Soulskill on from the hooray-for-the-eff dept.

A U.S. District Court Judge in California today ruled that so-called National Security Letters, used by government agencies to force business and organizations to turn over information on citizens, are unconstitutional. Judge Susan Illston ordered the government to stop using them, but gave the government a 90-day window to appeal the decision, during which the NSLs may still be sent out. The letters were challenged by the Electronic Frontier Foundation on behalf of a telecom who was ordered to provide data. "The telecom took the extraordinary and rare step of challenging the underlying authority of the National Security Letter, as well as the legitimacy of the gag order that came with it. Both challenges are allowed under a federal law that governs NSLs, a power greatly expanded under the Patriot Act that allows the government to get detailed information on Americans’ finances and communications without oversight from a judge. The FBI has issued hundreds of thousands of NSLs and been reprimanded for abusing them — though almost none of the requests have been challenged by the recipients. After the telecom challenged the NSL, the Justice Department took its own extraordinary measure and sued the company, arguing in court documents that the company was violating the law by challenging its authority. The move stunned the Electronic Frontier Foundation, which is representing the anonymous telecom. ... After heated negotiations with EFF, the Justice Department agreed to stay the civil suit and let the telecom’s challenge play out in court. The Justice Department subsequently filed a motion to compel in the challenge case, but has never dropped the civil suit."

13 of 231 comments (clear)

  1. Patriot Act is unconstitutional by inputdev · · Score: 5, Insightful

    It's nice to see checks and balances. I wondered what happened to those.

    1. Re:Patriot Act is unconstitutional by fyngyrz · · Score: 5, Insightful

      Yeah. Except this David doesn't even have a sling. It's going to go to SCOTUS, they'll side with the save-the-children, oh-no-terrorists, and it's-for-your-own-good crackpottery that dominates the mindset of our legislature and our judiciary.

      Interstate = intrastate, ex post facto = go ahead and add punishment (just call it something else), probable cause = "well, we thought it was a reasonable search", borders = 100mi from the.... borders.

      Come on, we know exactly how this is going to go.

      Although I have to say, three fucking big cheers for trying, little people.

      --
      I've fallen off your lawn, and I can't get up.
    2. Re:Patriot Act is unconstitutional by Immerman · · Score: 5, Interesting

      Damn, someone even more cynical than me. Gods I hope you're wrong.

      --
      --- Most topics have many sides worth arguing, allow me to take one opposite you.
    3. Re:Patriot Act is unconstitutional by slimjim8094 · · Score: 5, Informative

      [Once it's been upheld by the Supreme Court], no one can ever challenge their constitutionality again.

      Not quite. Ever heard of Plessy v. Ferguson? It's admittedly much more difficult (on the balance for good reason) to challenge a previously-decided Supreme Court decision, but by no means impossible. That's just one (probably the most famous) example of the Court reversing itself, but there's a lot more.

      --
      I have developed a truly marvelous proof of this comment, which this signature is too narrow to contain.
    4. Re:Patriot Act is unconstitutional by Jane+Q.+Public · · Score: 5, Interesting

      "But the US Supreme Court, in their infinite wisdom, came to the brilliant conclusion that they were supreme."

      And therein lies the problem. At least if you listen to the Federal Government, rather than reading history.

      When debating about whether to ratify the Constitution, the States were repeatedly guaranteed that the Supreme Court would be the ultimate arbiter ONLY when it came to matters of the powers enumerated in the Constitution. On questions of WHETHER the Federal government was exceeding its Constitutional powers, the Supreme Court was not to be relied on. Because -- of course -- the Supreme Court is part of that same government. And it was never intended that the Federal government should have the authority to decide what its own powers are. If it were, there would have been no need for a Constitution in the first place.

      Following is an excerpt from James Madison's "Report of 1800" before the Virginia legislature. Modern English translation below.

      "However true therefore it may be that the judicial department is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the government; not in relation to the rights of the parties to the constitutional compact, from which the judicial as well as the other departments hold their delegated trusts. On any other hypothesis, the delegation of judicial power would annul the authority delegating it; and the concurrence of this department with the others in usurped powers might subvert forever, and beyond the possible reach of any rightful remedy, the very Constitution which all were instituted to preserve."

      In other words, the Supreme Court is normally "supreme" in matters of normal Federal law, but NOT "in relation to the rights of the parties to the constitutional compact" (the States). His reasoning for this is perfectly solid: since via the Constitution, the States were creating the Federal government, and ceding some of their powers to it, the Federal government cannot be more powerful than the States themselves, except in those areas explicitly set out by the states in that same Constitution. The Supreme Court cannot lord it over the States because the States created it and gave it power in the first place, which is a logical contradiction. ("On any other hypothesis, the delegation of judicial power would annul the authority delegating it;")

      And where the question of whether the Federal government has exceeded its authority arises, the Supreme Court is no more immune to power-grabbing than the other branches of the Federal government. ("... the concurrence of this department with the others in usurped powers might subvert forever, and beyond the possible reach of any rightful remedy, the very Constitution which all were instituted to preserve.")

      Therefore, when the Federal government is deemed by the States to have exceeded its rightful powers as enumerated in the Constitution, it is "the right and the duty" (as he and Jefferson wrote elsewhere) for those States to resist the Federal government, and declare that "law" null and void.

      That is exactly what you are seeing today, with a great many states voting to "nullify" Obamacare, certain gun and marijuana restrictions, and other Federal "laws" that they feel are unconstitutional.

    5. Re:Patriot Act is unconstitutional by number11 · · Score: 5, Insightful

      "'Patriot Act' was a very highly manipulative naming for a very unpatriotic act. Smoke and mirrors all too common and further enabled by current major media."

      Kind of like "Affordable Care Act"? The one that would fine people thousands of dollars for not buying insurance they already couldn't afford to buy?

      You mean, that act that provides subsidies for low-income people to buy insurance with, and tightens the screws on employers who don't provide health insurance? That prohibits insurance companies from dumping/refusing you because you were sick?

      Yeah, it's a crappy law, tailored to keep the big insurance companies happy. They should have just expanded Medicare to cover everybody (health care shouldn't have anything to do with the tender mercies of employers or insurance companies, and Medicare's overhead expense is a small fraction of what insurance companies cost), but the insurance business (which largely overlaps the financial business) is too powerful to let themselves get cut out of the picture that way.

      But it's better than the previous situation, where medical problems are the #1 cause of both bankruptcy and homelessness, where the wealthy and well-insured get great care, and the hospitals have to eat the cost of care for those who can't afford it.

  2. Actually... by Anonymous Coward · · Score: 5, Funny

    they are constitutional. I have proof but you're not allowed to see it. I'd tell you how many pages that proof has but that would endanger the lives of officers in the field.

    1. Re:Actually... by shentino · · Score: 5, Insightful

      You know what's interesting is that the Bill of Rights is in the constitution as a pack of 10 amendments, whereas the laws that even define the concepts of state secrets and classified information are established at a federal statute level.

      Given the supremacy clause, shouldn't my civil rights trump concerns about national security?

      The law that says I am entitled to due process outranks the law that says I have to let the government play keep-away with information.

  3. Challenging Authority by ohnocitizen · · Score: 5, Insightful

    the Justice Department took its own extraordinary measure and sued the company, arguing in court documents that the company was violating the law by challenging its authority

    . Stunning is the right word. That lawsuit, which appears to still be active, is an affront to a nation of laws with respect for civil rights. Legally attacking citizens for challenging authority ought to carry a steep political price.

  4. Re:what can Joe Citizen do? by cervesaebraciator · · Score: 5, Informative

    Give money to the EFF. You'll even get a nifty t-shirt out of the deal if you like.

  5. Justice Department is just like an HR department by redshirt · · Score: 5, Interesting

    Many people think that a corporation's Human Resources department is there for the protection of the employees. In reality, the opposite is the case - to protect the management from the employees. The same is true for the Justice Department. It doesn't exist to protect the people, but rather to protect the administration and control the population. Sure every once in a while they manage to do the right thing to satisfy the people. My HR department organizes an annual summer picnic.

  6. Re:Justice Department is just like an HR departmen by DragonWriter · · Score: 5, Insightful

    Many people think that a corporation's Human Resources department is there for the protection of the employees.

    Which is silly, because if companies even wanted to expend the slightest effort to pretend that was the case, they would call it "Employee Services". They call it "Human Resources" quite honestly -- its there to manage corporate resources that happen to be human.

    In reality, the opposite is the case - to protect the management from the employees.

    No, its there to protect the value of the employees (including those that are "management") as corporate assets; protecting the corporation from harm when those assets operate outside of the corporations desired parameters is a part of that, but doesn't define the role. This is much the same role as, say, the department tasked with overseeing factory operations has with respect to heavy machinery.

    Sure every once in a while they manage to do the right thing to satisfy the people. My HR department organizes an annual summer picnic.

    Manging morale for the purpose of increasing retention and productivity is part of the positive value side of protecting the value of the employees as corporate assets as much as mitigating the harm from dissatisfied employees is on the negative value side. You oil the machine to keep it working while it is working as desired, and you contain the damage and discard it as quickly as possible when it stops doing so and becomes a liability to keep around. All part of the same mission.

  7. "Secret Government" is a huge threat to us all by erroneus · · Score: 5, Interesting

    Even as I was a TSA screener for a while, the whole "papers please!" measures that have been coming down have simply reminded me of "Nazi Germany" from old movies and the like. At some level I found it amusing if only because people were so easily pushed into accepting this. Nobody questioned things enough. Nobody asked "why is the security threat condition never 'GREEN'?" Of course I was also disgusted by it. That we were told to explain to people about rules which were 'secret' and couldn't be shown to them made me feel like a real shit. I was glad to finally get another job when I could.

    A government which cannot be trusted has already betrayed the people and it needs to be corrected. "It was my job" was an excuse I used too... though, the things I let slip by me... well... :) I can't say that I let them slip by intentionally, but in one attempt, I was foiled by a co-worker who ratted out a one-legged man who had marijuana in his pocket. I *so* wanted to let that go...