National Security Letter Issuance Likely Headed To Supreme Court

Gunkerty Jeb writes The Ninth Circuit appeals court in San Francisco took oral arguments from the Electronic Frontier Foundation and the Department of Justice yesterday over the constitutionality of National Security Letters and the gag orders associated with them. The EFF defended a lower court's ruling that NSLs are unconstitutional, while the DoJ defended a separate ruling that NSLs can be enforced. Whatever the court rules, the issue of NSLs is all but certainly headed for the Supreme Court in the not too distant future.

Comments

DOJ Oaths

[trikes57]

Didn't these guys have to take an oath to defend the Constitution?

Its time to add teeth to Oath Violations. Loss of job, loss of pension, jail time.
To argue that some silly law or court ruling overrides the First Amendment should be a criminal offense.

Re:DOJ Oaths

[WillAffleckUW]

Fairly sure the Oath was to defend the Corporations.

Re:DOJ Oaths

[The Ickle Jones]

Alas, evidence is that most people who get excited about the First tend to think that the Second is something that can (and should!) be overridden at a whim....

I think the government should follow all of the constitution, but the reverse is also true. I can't even count how many gun fanatics I've seen that support the NSA, the TSA, etc. Some of us actually care about the constitution and not just the second amendment, but a lot of the people that don't also frequently make the claim that the government is incompetent and corrupt, so why the hell do they want it to be able to collect everyone's information?

Re:DOJ Oaths

[casings]

You can't deny that it is a first amendment right to disagree with the second amendment. And if we are making generalizations a lot of the second amendment people love to use their rights to intimidate people exercising their first amendment rights.

You can't pretend that either side is totally virtuous.

Re:DOJ Oaths

[AHuxley]

It really depends on the quality of parallel construction needed and what has to be presented in an open US court.
"Feds reviewing DEA policy of counterfeiting Facebook profiles" (Oct 9 2014)
http://arstechnica.com/tech-po...
"Twitter says gag on surveillance scope is illegal “prior restraint”" (Oct 8 2014)
http://arstechnica.com/tech-po...
US says it can hack into foreign-based servers without warrants (Oct 8 2014)
http://arstechnica.com/tech-po...
It seems the NSL aspect is just one aspect a very complex, hidden way of getting and using data for later use in the US legal system.
In the past other surveillance programs like FAIRVIEW, OAKSTAR, RAMPART-A and WINDSTOP could bring in the data locally, globally via friendly nations and tame trusted big brands.
The NSL seems to just fit in between a global sorting and direct use in the US legal system.
It really depends how this plays out. Will the classic GCHQ view of not going to court so people feel like nothing telco related is going on?
Or the new US idea that surveillance is now of such a global reach and low cost that US courts can know and and will have to just understand "collect it all"?
The keys to a server and all users over time are now in play even if its just for legally finding one user for one case.
Once your servers are part of a case, who can legally say that case has stopped? Weeks, months, years of no crypto and all logs. All very legal now? Soon?

Re:DOJ Oaths

[HornWumpus]

Brandishing a firearm (threatening someone with one) is a felony unless you had reason to fear for your life. In which case you could have just shot the bastard.

Show evidence of widespread intimidation with weapons. Are you scared by the mere fact that people have them?

Re:DOJ Oaths

[mrchaotica]

To argue that some silly law or court ruling overrides the First Amendment should be a criminal offense.

Replace "First" with "Second", and your statement is still perfectly valid.

Yes, yes it is.

Nobody except moronic, hyper-partisan fuckwads (on "both[1]" "sides[2]") ever argued that the First and Second Amendments were mutually-exclusive, you know!

([1] in actual reality (as opposed to the Bizarro-world perpetuated by the propagandists we call "mainstream media") there are more than two points-of-view on any given issue, and they are not all equally valid.)

([2] the only way to be on a "side" is to blindly worship the totality of a party's platform instead of forming your own ideology. If that describes you, go tear up your voter registration card and then kill yourself, for the good of humanity.)

Re:DOJ Oaths

[Defenestrar]

Well put a bunch of Firsters on one side of the room and a bunch of Seconders on the other side and then let them do battle with their respective speech and arms and see who wins.

There's probably a lesson or three in there. Figuring it out is above my paygrade though; that's why I'm so appreciative that this country has an independent judiciary making sure that the people with the arms aren't able to just simply apply force majeure to prevent free speech...

Re:DOJ Oaths

[LVSlushdat]

..... by the propagandists we call "mainstream media"

I keep wondering WHEN everyone is going to wake up and realize what "we call the mainstream media" has become the
defacto US Department of Propaganda.. We should call things by their correct and factual names.. The "mainstream media"
hasn't been the "4th Estate" in quite a few years...

Re:DOJ Oaths

[EuclideanSilence]

It is your first amendment right not to believe in the second amendment.

It is your first amendment right not to be prosecuted for declaring your disagreement with the second amendment.

It is NOT your first amendment right to request government employees to ignore your second amendment right. That is criminal. You can declare your belief that they should, but any intention to actually carry it out should land you in jail. And that goes for all constitutional rights.

Re:DOJ Oaths

[mi]

a lot of the second amendment people love to use their rights to intimidate people exercising their first amendment rights.

Citation, please? Enumerate two or three such cases — should not be difficult to do, if it really happens "a lot"... I'll wait. Thank you!

Re:DOJ Oaths

[mi]

Nobody except moronic, hyper-partisan fuckwads (on "both[1]" "sides[2]") ever argued that the First and Second Amendments were mutually-exclusive, you know!

Personally, even the few hyperpartisan fuckwards I know have never stated anything of the kind. Strawman much?

The problem, that leads many people to contrast the First and the Second Amendments, is not that they contradict each other — no one thinks so — but that we are reading them differently.

The First Amendment is read as liberally and all-encompassing, as the Jews read the prohibition to "cook lamb in the milk of its mother" — combining goat cheese with beef is Treif even though neither are sheep, and a goat can not possibly be the bull's mother. Read like this, the Amendment's right to "petition the government for redress of grievances" is understood as the right to any and all speech — including even production of pornography.

If instead we read the First Amendment the way we are told to interpret the Second, however, only the speech addressed to the government — and only for a redress of grievances — would be a right. Oh, and you'd have to go through a wait-period before opening your mouth. And you'll need a license to exercise that right too.

Re:DOJ Oaths

[Immerman]

How about adding loss of PERSON to that list. As in execution - the time-honored punishment for those who have committed treason. I certainly can't think of many acts more treasonous than the very people entrusted with the power and authority to enforce the law at the highest levels actively undermining the constitution they have sworn to defend.

Re:DOJ Oaths

[Anonymous Coward]

Well put a bunch of Firsters on one side of the room and a bunch of Seconders on the other side and then let them do battle with their respective speech and arms and see who wins.

There's probably a lesson or three in there. Figuring it out is above my paygrade though; that's why I'm so appreciative that this country has an independent judiciary making sure that the people with the arms aren't able to just simply apply force majeure to prevent free speech...

"Violence is the last refuge of the incompetent" --Salvor Hardin

Re:DOJ Oaths

[NoKaOi]

Replace "First" with "Second", and your statement is still perfectly valid.

No, it's not the same thing at all. The 2nd specifies that it applies to a well regulated militia, so it doesn't actually apply literally to gun control, the question is if control violates the intent of it. The 1st, on the other hand, has the qualification of "congress shall make no law..." So any law granting authority for NSLs violates the constitution. In same cases the argument is made that something other than congress passing a law violates the intent of the 1st, but in the case of NSLs, the FBI uses various laws passed by congress as it's rationale, therefore any portions of those laws that do grant the FBI authority for NSLs is unconstitutional whether the 1st is taken literally or on its intent. Of course, that just applies to the disclosure portion. The purpose of the NSL is to force a search and/or seizure without a warrant, which is in direct violation of the 4th amendment.

Nowhere in the text of either the 1st or 4th amendments does it specify exceptions for suspected terrorism. This sort of thing is exactly what the Bill of Rights is meant to protect us against.

Re:DOJ Oaths

[Livius]

It's not so clear who is a department of who.

Re:DOJ Oaths

[mrchaotica]

I misspoke. I was trying to say that supporting or agreeing with the First and Second amendments are not mutually exclusive. Or in other words, that -- contrary to what "conservatives" would have you believe about "liberals," or what "liberals" would have you believe about "conservatives" -- lots of people think it's good to have the right to free speech and the right to bear arms.

And by the way, they're both all-encompassing: The First Amendment affirms your right to say whatever the fuck you want, especially things the government doesn't want people to hear. The Second Amendment affirms your right to self-defense, especially against a tyrannical government. They are nothing less than rules written by violent revolutionaries for violent revolutionaries.

Re:DOJ Oaths

[modecx]

And if we are making generalizations a lot of the second amendment people love to use their rights to intimidate people exercising their first amendment rights.

The only thing a lot of your so-called second amendment people choose to intimidate on a regular basis are criminals and thugs, such as their representatives in Congress--and sometimes, other miscellaneous miscreants.

Re:DOJ Oaths

[dgatwood]

Exactly. The second amendment is arguable. Depending on how you interpret it, it may or may not have been intended to apply to random people having weapons for their own personal protection. Therefore, it is at least possible to argue that the mere existence of police departments, national guard units, and the military are well-regulated militias, and that nobody outside of those organizations has a right to bear arms. I'm not sure I necessarily agree with that interpretation, but it is at least possible for a rational person to argue that interpretation of the second amendment without looking insane or idiotic.

By contrast, there's no way to interpret the first amendment in a way that gives the government any right to pass laws that cause prior restraint of speech of any kind. With that said, courts have generally ruled that certain limitations on speech (as opposed to outright bans) may be allowed if they qualify as "reasonable time, place, and manner restrictions." For example, the government can legitimately say that no protests may occur within two blocks of a cemetery, that no stores can sell alcohol within three blocks of any elementary school, or that no protests can use a megaphone between 10:00 PM and 7:00 AM.

A national security letter's prohibition on disclosure, so long as it is time-bounded, might legitimately fall into that category. If those gag orders have such a time bound, the EFF may have a very difficult time arguing the case (unless the time bound is long enough to be seen by most people as unreasonable). With that said, I'm not under the impression that NSL gag orders have any set date on which the embargo is automatically lifted. If that is the case, then such prior restraint is clearly and unequivocally an egregious violation of the first amendment that cannot possibly be justified under any remotely plausible interpretation of the Constitution or its amendments.

Of course, the fundamental problem is that most people taking an oath to uphold the Constitution against all threats, both foreign and domestic, automatically assume that this means protecting the United States against its enemies, never even considering the possibility that the actions they take in doing so represent an even bigger threat. Throughout history, nearly all of the worst atrocities have been under the guise of protecting the people from its enemies, from the Crusades to the Holocaust. Worse, most such horrors often start out in a manner that seems benign—Hitler and McCarthy, for example—and get progressively worse. National security letters might start out benign, with the best of intentions, but they have the potential for nearly unlimited amounts of abuse, which is why IMO they must be found unconstitutional sooner rather than later.

To that, I would add one more point—that the first amendment is by far the single most important amendment to the Constitution, without which the rest of the amendments are moot—the condicio sine qua non, if you will. It represents the very core of our freedoms. Without the ability to talk about and expose abuses, there is no way to prevent them. Without the ability to criticize the government, there is no way to change it. Without knowledge of what government is doing, the entire notion of democracy—rule by the people—becomes untenable. It is a near certainty that any such government will rapidly devolve into a thinly veiled plutocracy or aristocracy, because the people cannot adequately evaluate their lawmakers in the absence of any understanding of what those lawmakers are doing. For this reason, the first amendment must be defended at any cost, above all other amendments. And that is what the ninth circuit must bear in mind as they make their decision on this matter.

Re:DOJ Oaths

[serviscope_minor]

as the Jews read the prohibition to "cook lamb in the milk of its mother" â" combining goat cheese with beef is Treif even though neither are sheep, and a goat can not possibly be the bull's mother.

Most, but not all Jews. Some of them instead track which animals are the mothers and calfs, so they can happily eat milk-poached-meat provided the milk and meat are not mother and calf respectively.

When questioned by a travelling jewish writer, their retort was "which is more important? Your scholars or our profit?".

Re:DOJ Oaths

[Anonymous Coward]

You and the post ahead of you are both wronger than wrong on the subject of "interpreting" the Second Amendment. There's no "may or may not" about it because the founders actually wrote down what they meant when they wrote the thing. Lots of times. Go read some of them.

Thomas Jefferson wrote:

What country can preserve its liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms.

It's kind of hard to do that if you don't have any, or if you have to get permission from the people you'd rather not have in power to do so, huh?

George Mason, another of the people who actually wrote the Constitution:

I ask, sir, what is the militia? It is the whole people except for a few public officials.

Interesting, isn't it, that the one group you anti gun people never question having access to weapons ("public officials") is the one group NOT covered by that line or reasoning. Public officials were about the last people these folks wanted to see running around armed. That's a practice I wish we'd emulate more today. Of course, a quote from a founder isn't the same as the text of the amendment, but I'd argue that a person who was there is probably more qualified to "interpret" the Second Amendment than you are.

Another historical FACT (not interpretation), as has already been pointed out, is that "well regulated" at the time meant "properly functioning". It's the same reason that when they developed precision clocks in the 18th century they called them "regulator" clocks. If you're going to try to interpret ANYTHING about the Constitution, start by learning what the language it was written in meant.

Re:DOJ Oaths

[devent]

Your whole argument is BS. The 1th is not that you have the unlimited power to say whatever you feel like, and that your government cannot make laws restricting you to say whatever you want. The 1th is about political speech and freedom of religion. The 1th does not give you the right to incite hate speech or incite any form of crime or cause any form of harm. Your rights ends when they infringe on other people rights, and the government is elected to ensure the rights of all.

This sort of thing is exactly what the Bill of Rights is meant to protect us against.

You would be correct if the NSLs would prohibit somebody to excercise political speech or religion. But congress is perfectly in its rights to limit your free speech to protect other citizens rights. Like, you have no 1th right to shout fire in a crowded theater and thus cause a panic and maybe the death of some people. Or you have no 1th right to tell people to kill some other people.

You do realize that the 1th does not trump all the other ammendments of the constitution only because it is the first? That is why your government can arrest you for a crime, for example, and thus restricting your 1th, 2th, etc.

Re:DOJ Oaths

[SuseLover]

Replace "First" with "Second", and your statement is still perfectly valid.

No, it's not the same thing at all. The 2nd specifies that it applies to a well regulated militia, so it doesn't actually apply literally to gun control, the question is if control violates the intent of it. The 1st, on the other hand, has the qualification of "congress shall make no law..." So any law granting authority for NSLs violates the constitution. In same cases the argument is made that something other than congress passing a law violates the intent of the 1st, but in the case of NSLs, the FBI uses various laws passed by congress as it's rationale, therefore any portions of those laws that do grant the FBI authority for NSLs is unconstitutional whether the 1st is taken literally or on its intent. Of course, that just applies to the disclosure portion. The purpose of the NSL is to force a search and/or seizure without a warrant, which is in direct violation of the 4th amendment.

Nowhere in the text of either the 1st or 4th amendments does it specify exceptions for suspected terrorism. This sort of thing is exactly what the Bill of Rights is meant to protect us against.

WRONG!! You're reading it wrong.

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.


The text of the amendment is a comma separated list of things that cannot be infringed. It should be read as: "These things shall not be infringed; A well regulated militia (necessary to the security of the state) and the right of the people to keep and bear arms." That comma between the "well regulated militia" portion of the sentence and the "right of the people" means AND. Also "well regulated militia" does not mean "regulated" as in govt. controlled, it means a trained militia.
Study the founders supporting documentation a little sometime and you may learn something.

Re: DOJ Oaths

[kilfarsnar]

If there wasn't the second amendment, you can bet your bottom dollar that there would no longer be a first amendment. .. or any amendment for that matter.

Yeah, because it's all your guns that are keeping the government from censoring what people can say. Y'all crack me up. How did things work out for David Koresh, or Randy Weaver, or anyone else who thought they could defend themselves from armed government agents? Has the second amendment prevented the Feds from spying on everyone, or seizing people's property, or establishing free speech zones, or otherwise infringing on our rights?

Look, I support gun ownership. I don't own one myself because I do not feel it necessary. But I support the right of any law-abiding citizen to arm themselves if they feel the need. However, the idea that that right will prevent the government from doing anything it wants is pure fantasy. You are outgunned and outnumbered. If they want to get you, they'll get you sooner or later.

Re:DOJ Oaths

[kilfarsnar]

And people eating at Chipotle.

Re:DOJ Oaths

[kilfarsnar]

1th?

Re:DOJ Oaths

[jratcliffe]

Didn't these guys have to take an oath to defend the Constitution?

Its time to add teeth to Oath Violations. Loss of job, loss of pension, jail time.
To argue that some silly law or court ruling overrides the First Amendment should be a criminal offense.

Nobody is arguing that some "silly law or court ruling overrides the First Amendment." The court rulings define what does and doesn't fall afoul of the First Amendment. The First Amendment's speech protections aren't universal (i.e. libel, incitement to violence), and they aren't specific to all cases, so the Constitution has to be interpreted, and the courts, for better or for worse, have to handle that.

Re:DOJ Oaths

[The Ickle Jones]

You may well be punished for the injuries caused by the resulting *panic* if there was no such fire, though.

Nonsense. Punishing someone because other people took harmful courses of action in response to your speech is the same as punishing someone for their speech. You cannot separate the two. It's an unconstitutional restriction upon free speech.

Re: DOJ Oaths

[blackomegax]

Sure, you can just plink them to death..... https://www.google.com/search?...

Re:DOJ Oaths

[3dr]

Leave him alone, it's a typing impediment.

Re:DOJ Oaths

[cardpuncher]

>Didn't these guys have to take an oath to defend the Constitution?

I'm always amazed how Americans treat the Constitution like some kind of sacred text and then argue constantly about angels and pinheads.

If you're looking to distinguish between right and wrong, a religiously fundamental obsession with scripture is going to get you nowhere - it's better suited to defending the indefensible.

Even if some bewigged and berobed supreme priest deems it constitutional, it's still wrong - and that's what matters.

Re:DOJ Oaths

[devent]

Or maybe English is just not my first language.

Re:DOJ Oaths

[david_thornley]

Treason is providing aid and comfort to an enemy, generally held to be some sort of military enemy. It requires either a confession or more than one witness to the same overt act for conviction.

Look, if we're defending the Constitution, let's defend the whole thing. I'm not all that fond of the Second Amendment, but you're not going to find me advocating what I see as unconstitutional gun control laws.

Re:DOJ Oaths

[david_thornley]

Read the First Amendment. Their are four specific statements there: freedom of speech, freedom of the press, having no established (i.e., government-favored) religion, and the right to assemble peaceably and petition the government. You could construe the last to mean that assembling for non-political purposes is not a Constitutional right, but that government-petition thing clearly does not apply to anything earlier in the Amendment.

I do have the Constitutional right to hate speech. I can say that somebody should be murdered (although I can't legally incite murder). In addition, NSLs do prohibit political speech, in that we'd need to hear from people who have been sent them in order to come up with a reasonable grievance to petition for redress, so the automatic gag is Constitutionally iffy even by your standards.

Re:DOJ Oaths

[devent]

It depends on the situation. What you certainly do not have is unlimited free speech.
Brandenburg v. Ohio "The constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force, or of law violation except where such advocacy is directed to inciting imminent lawless action and is likely to incite or produce such action."
And further, Justice Frank Murphy "There are certain well-defined and limited classes of speech, the prevention and punishment of which have never been thought to raise a Constitutional problem. These include the lewd and obscene, the profane, the libelous and the insulting or “fighting” words – those which by their very utterances inflict injury or tend to incite an immediate breach of the peace."

In addition, NSLs do prohibit political speech, in that we'd need to hear from people who have been sent them in order to come up with a reasonable grievance to petition for redress, so the automatic gag is Constitutionally iffy even by your standards.

You need to prove that in a court.

Re:DOJ Oaths

[Immerman]

I would classify anyone undermining the very constitution that grants them any sort of legitimacy to be an enemy, wouldn't you?

Re:DOJ Oaths

[dgatwood]

First, I'm not anti-gun. I am, however in favor of limited regulation of firearms to ensure public safety. Second, I'm well aware of everything you just said. However, to play devil's advocate once again, none of those things precludes a fully anti-gun interpretation. Here's why:

Mason's statements indicate what he considered the militia at the time, because the entire people were (at least to some degree) responsible for securing the nascent nation against its enemies. One could reasonably argue that, because the entire people are clearly no longer directly involved in the defense of our country today, his historical definition is no longer relevant.

Similarly, although you are correct that "well-regulated" does mean "properly functioning", as opposed to "controlled by the government", it is the government's responsibility to ensure that such a militia is, in fact, properly functioning; nobody else can do that job for them. Jefferson did not live in an era with automatic weapons, in which every couple of years, somebody snaps and uses them to shoot up a school full of kids. If you interpret "militia" based on that original meaning, then one could reasonably argue that the militia is no longer properly functioning (well-regulated), and that laws must bring it back into line so that it becomes properly functioning again.

In other words, if you want to interpret the second amendment to be absolute, rather than absolute only for people actively involved in service to their country, the onus falls on you to prove that it makes the country, on the whole, safer. Personally, I feel that it probably does, on the whole, except where convicted violent felons and the mentally ill are involved. And I feel that we need better screening to ensure that the mentally ill are not treated as part of that militia, in the interest of public safety.

Re:DOJ Oaths

[mi]

the prohibition on using the same dish for meat and dairy

The point was, there is no such prohibition.

The only thing the scripture actually proscribes is what I quoted: "cooking lamb in the milk of its mother". That's all — all other rules are derived from that. That they have been expanded to cover all dairy and all meat — even those derived from different species — is the phenomenon I used as an illustration.

Re: DOJ Oaths

[kilfarsnar]

You are outgunned and outnumbered.

Sure about that? Last I heard, even the lower estimates of ownership FAR outstrip the entire military (all branches), and all LE in the country - combined.

That's true. But I'd counter that the military and police are more organized.

I was thinking more along the lines of individual or small group resistance. The Iraqis have shown us that it's almost impossible to maintain dominance when an entire population is against you. So yes, if the entire nation were to turn on the government it would be a different story. But the media will work to make sure any armed resistance is seen as domestic terrorism. Most people still believe what the news tells them. So mustering much of an organized force to counter police and military would be difficult.

Re: DOJ Oaths

[Agripa]

Luckily the actual targets one would go after are much softer and more unaware.

All Judges

[Anonymous Coward]

Crazy as it seems, all the judges were sent letters prohibiting them from taking this case due to National Security.

Re:All Judges

[mysidia]

Crazy as it seems, all the judges were sent letters prohibiting them from taking this case due to National Security.

No, they're allowed to take the case --- but they MUST paste the text that has been provided to them into their ruling and adopt the text as their ruling on the matter.

Re:All Judges

[Defenestrar]

I don't take much issue with the first part of your assessment, but you might want to take a look at the last eight or so years of SCOTUS vs DOJ. It's not exactly one sided.

Re:All Judges

[Toad-san]

I find that very hard to believe. Could you please provide a link supporting that allegation?

For anyone else scratching their heads

[Meshach]

From the Wikipedia article on National_security_letter: A national security letter (NSL) is an administrative subpoena issued by the Federal Bureau of Investigation (FBI) in authorized national security investigations "to protect against international terrorism or clandestine intelligence activities" (i.e., spying).

Re:Not going to SCOTUS

[trikes57]

Not likely. SCOTUS never misses a chance to bitchslap the 9th. And deservedly so.

DONATE

[Kludge]

https://eff.org/

Re:DONATE

[mi]

Who are talking to? The people, who donated all their lunch monies to help Obama get reelected — so his Administration can defend this law from the EFF, and demand backdoors in personal electronics?

Like they haven't been warned by the Clinton Administration demanding the even worse kind of backdoor — they have...

Laugh..

[koan]

The same Supreme Court that brought us Citizens United? We are proper fucked now.

Re:Laugh..

[jratcliffe]

The objection to Citizens United is that it too TOO broad a view of the First Amendment, by granting First Amendment protections to speech that opponents of the decision didn't think should get those protections.

Re:Laugh..

[koan]

Super PACs

I hope SCOTUS will defend the constitution

[Anonymous Coward]

Maybe I am too much of an idealist (and give my country too much benefit of the doubt), but if SCOTUS (Supreme Court of the United States) does its job, this madness (NSL's) will be stifled.

After, the American system is built on the assumption that one or two branches will attempt to subvert liberty, and that the other will reign them in.

In this case the executive and legislative have run amock and believe themselves capable of handling essentially limitless power. NSLs are an excellent example, we want information, and you can't even let anyone know what we want or even how often we want it. This is EXACTLY what the first amendment is intended to prevent, the government running amok and preventing its citizens from even discussing it. If the government is allowed to stifle this dissent, then representative government is lost and the despots are free to do what they want.

Hopefully, the judges on the Supreme Court have enough insight and morality to finally stop this and start the United States back onto a course of rule of law in accordance with the constitution that all have sworn to uphold.

By the way, hello to the NSA, glad you are reading along.

Re:I hope SCOTUS will defend the constitution

[Anonymous Coward]

I hope SCOTUS will defend the constitution

Eh, why start now?

Re:I hope SCOTUS will defend the constitution

[jcr]

This is EXACTLY what the first amendment is intended to prevent,

not to mention the fourth and fifth amendments as well.

-jcr

But no jail time for the criminals

[penguinoid]

As always, no matter how non-obvious or convoluted the law, a regular person would face jail time if what they did were found to be illegal. And for government officials, they will merely be told "from now on, you may no longer do that".

Re:But no jail time for the criminals

[penguinoid]

Governmental officials are subject to the same criminal and civil laws as anyone else. But some have immunity to prosecution while they hold office.

The NSA hold no such immunity, legally speaking. Practically speaking, they have permanent immunity because they know all the dirt on all the politicians, so no politician dare cause them problems unless they don't mind ending up in jail or losing the next election. Hence the NSA are caught lying to congress and face no consequences, are caught spying on congress and face no consequences, are caught spying on the American public and everyone else, and face no consequences. And it's not because congress doesn't mind the NSA spying on them.

Supreme Court

[Princeofcups]

The the supreme court will decline ruling on it, and nothing will change.

Re:Supreme Court

[Charliemopps]

The the supreme court will decline ruling on it, and nothing will change.

No, they'll rule.

The supreme court almost always makes the correct ruling... weather you and I agree with it or not. Citzens united, for example, was the correct ruling... even as unpopular as it was. Freedom does have its price after all. But SCOTUS are very slow to rule. They wait to take cases during the "right time" or when public opinion moves in the right direction. They are aware that if they rule on something that's currently very unpopular, they could cause a public backlash that would lead to even worse laws being created by congress.

These NSLs are clearly unconstitutional. They know it, you know it, I know it, even those issuing the NSLs know it. It's just a matter of time. Public opinion is in the right direction, there is no valid defense for NSLs existence, there would be no backlash, they are getting struck down. The only reason I could see them not ruling is if there is something "Technically" wrong with the case. Sometimes SCOTUS will deny one case and accept another because their ruling on the first could be used in a "Bad way" or be somehow misconstrued legally.

Re:Supreme Court

[dgatwood]

Citizens United was not the correct ruling. Bribes are not a protected form of speech, and large campaign contributions made by an individual or a small group of individuals (remember that in a corporation, a small number of board members have near total autonomy in such decisions) are indistinguishable from bribes. And even if bribes were a constitutionally protected form of speech, it would still be entirely reasonable for government to limit the manner of that speech—requiring corporations to spread out those contributions over a longer period of time, to level the playing field. Those rules were quite clearly a "reasonable time, place and manner restriction". And I say that even as someone who is a staunch defender of the near-absoluteness of the first amendment.

The entire decision on Citizens United was based on absurd hypothetical scenarios (e.g. the government twisting election laws to censor the media) that did not apply to the actual case at hand in the slightest. That decision was a clear case of legislating from the bench, in the worst sense of the phrase.

So no, SCOTUS doesn't almost always make the correct ruling. Its shortsightedness frequently results in fairly serious errors (Plessy v. Ferguson, for example). Fortunately, it usually corrects those mistakes eventually. In the same way, Citizens United will likely eventually get overturned, assuming the piles of corporate money don't hopelessly corrupt the government beyond redemption before such a correction has a chance to happen.

I agree with you on the NSLs, assuming they aren't time-limited. If they are time-limited (e.g. a five-year embargo), it becomes a much harder argument; you'd have to argue that the time period was not reasonable, thus resulting in an unreasonable prior restraint of speech.

Re:Supreme Court

[jcr]

Citizens United was not the correct ruling.

Actually, this is a rare example of something that the court got right. The government doesn't have any legal authority to infringe our freedom of speech, whether we act individually or collectively, and when acting collectively, whether that collective is a corporation, a partnership, or any other kind of organization. Opponents of the CU decision claim that the decision amounts to declaring that corporations are people, which entirely orthogonal to the question of whether the government can shut people up.

Bribes are not a protected form of speech,

Campaign contributions aren't bribes. Money given to a candidate off the books that they can use for hookers and blow are bribes.

-jcr

Re:Supreme Court

[WrongMonkey]

The Citizens United decision has nothing to do with bribes. In 2004, Citizens United (the group) wanted to block Micheal Moore's anti-Bush movie from being advertised during an election. The FEC rejected that, ruling that documentaries were protected by the first ammendment. So in 2008, Citizens United made an anti-Hillary movie and started to advertise it during an election. They were quickly struck down by FEC, who were then struck done by the Supreme Court. If you're such a "staunch defender of the near-absoluteness of the first amendment", how can you honestly say that Micheal Moore (and Miramax films) can make a political documentary, but other people (and corporations) can't?

Re:Supreme Court

[dgatwood]

If your facts were correct, I'd agree with you, but they aren't:

• This case had nothing to do with the movies themselves. Those are clearly protected speech, and were never in question. This case was about advertisements for the movies aired on TV.
• The FEC did not reject CU's challenge to Fahrenheit 9/11 on first amendment grounds. They rejected it because Fahrenheit 9/11's ads did not mention a candidate by name within 60 days of an election, and thus did not violate the law in question.
• By contrast, they found that CU's advertisements mentioned a candidate by name, and thus were in violation of the law.

CU's challenge was to overturn a law that their ads violated, but Michael Moore's didn't violate. It's as simple as that.

Re:Supreme Court

[dgatwood]

Campaign contributions aren't bribes.

The real problem is that what the CU decision effectively made legal were attack ads that mention a candidate by name, paid for by third parties. Although they are effectively in-kind contributions to the campaign, they aren't subject to any of the contribution limits that would normally apply to contributions, because they aren't actually given to the campaign.

In effect, the CU decision allows for unbounded campaign contributions in the form of advertising dollars from corporations, which are prohibited by law from making direct campaign contributions. And unbounded contributions are (effectively) bribes.

Re:Supreme Court

[WrongMonkey]

I was trying to provide a broad overview and I don't disagree with your minor corrections. But there's still nothing about BRIBES.

Obama Administration

[mi]

In 2008 a pair of "New Black Panters" members were arrested for intimidating voters in Philadelphia. In due time they were sued by Bushitler's Department of Justice, which was about to win the case. Obama's Department of Justice, however, allowed the men to avoid any punishment.

I'm bringing this up to preempt any attempt to defend Obama DoJ current actions defending "Security Letters" by their "having to" defend a law. They don't have to. When they didn't feel like it, they dropped the ball and let several thugs walk free and unscathed. Today they do feel like it, they want to have this law and are earnestly defending it.

They may even win, but even if they lose, it will not be for lack of trying. Oh, and they want to keep a backdoor for themselves in your personal electronics too. Remember that if ever you have a difficulty deciding on who to vote for — a promise, that Democrats will improve your civil liberties, will be a lie.

Re:Obama Administration

[whyAreAllNicksTaken]

But for the Justice Department to win the Supreme Court will have to rule that companies don't have a right to do whatever they want. Considering their legislative history, I think we are pretty safe.

Re:Obama Administration

[grasshoppa]

Well, the practice will be illegal anyway. But it always has been, and we see that no one really pays attention to that pesky "legality" question, so what'll probably happen is that it will get a new window dressing, be secret, and no one will be the wiser.

Oh, it'll still be illegal, but that's what gag orders are for.

Re:Obama Administration

[Anonymous Coward]

Any promise by Republicrats is a lie. Didn't generations of Bushes and Clinton and Obama Hussein Barracks teach you anything???

Re:Obama Administration

[BringsApples]

"The System" is broken and yet The People are left to rely on either "The System" to straighten out the government, or The People to straighten out the government. Not sure how many Americans are even able to follow car-line rules at their local elementary school, much less straighten out the government. The government is capable of all acting as one, and The People aren't.

No, the government wants it's power because The People don't want theirs. When an exiting president gives a speech indicating troubles ahead, and no one gives a shit, the government knows what to do next, The People don't. And it's soo to late for anything to change, because at this point, it would mean that the people want their cake and eat it too.

Re:Not going to SCOTUS

[Defenestrar]

Um, the Supreme Court wouldn't necessarily have a compelling reason to take up the case if the 2nd and 9th are in agreement. The quickest way for this to go to the top would be for the 9th to sustain the ruling for the EFF's client and then there'd be a 9th-2nd split.

Spelling mistake (Re:DOJ Oaths)

[mi]

You misspelled "KKKorporations".

Re:Balance of power

[jc42]

Sometimes it takes years/decades for power abuse to get curtailed (here's hoping...), but it seems this checks and balance thing can eventually grind through major issues like this. Not great, not perfect, glacially slow but it seems to be working...

So how would we know? Since it's all going on in secret, with severe punishments for anyone who speaks openly and truthfully about what they've been ordered to do, the only assumption that the proverbial "reasonable man" (or woman? ;-) would make is that we have no idea what they're planning to do to us next. This story could all be just "theater" to lead us to think that things are improving.

As long as the question "How would we know" is illegal for the participants to answer, we should simply assume the worst. We have a lot of history telling us what powerful leaders are likely to be doing to their own population when they enforce secrecy about their actions.

Re:Balance of power

[dgatwood]

As long as the question "How would we know" is illegal for the participants to answer, we should simply assume the worst.

This. That's why the first amendment is by far the most important aspect of American law, and that's why any laws that abridge it in a broad manner (as NSL gag orders do), no matter the perceived need, must be struck down. There can be no freedom without the true transparency enshrined in our highest law, and without the people having the courage to demand that such transparency be defended above all else.

Re: To paraphrase

[TheRaven64]

And a well-functioning militia is one with a clear chain of command, regular training, and so on. So, presumably, all of the NRA members are enrolled in such an organisation...

Unfortunately...

[advocate_one]

the Supreme Court is most likely fatally compromised as the NSA will already have all the dirt they need on the Judges in order to get them to make the "decision" they need....

And once at the Supreme Court...

[TheBilgeRat]

The judgement will be made FOR the constitutionality of NSLs on a 5-4 split decision...assuming of course that they hear the argument at all.

NSLs are obviously unconstitutional.

[jcr]

What the supreme court has to decide is whether they will help the government to pretend ONCE AGAIN that the bill of rights is optional.

-jcr

Re:To paraphrase

[mi]

What part of "well fucking regulated" don't you understand?

Which part of "petitioning the government for redress of grievances" don't you understand, citizen?

By your own logic, you don't have a right to any other speech — not to advertise anything, not to produce pornography, not to organize boycotts. Not even political campaign speeches are a right under your reading of the Bill of Rights — unless they are addressed to the sitting government as a form of a petition. If, of course, your thinking is self-consistent, and you are reading the First Amendment with the same literal strictness you are applying to the Second.

And by the logic of others of your kind, your Constitutionally-protected speech is limited to the means available in the 18th century too — even if you are merely petitioning the government, you don't have a right to do that via the Internet, TV, or radio.