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

[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

[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

[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

[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

[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

[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

[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

[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.

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

[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.

DONATE

[Kludge]

https://eff.org/

Laugh..

[koan]

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

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:I hope SCOTUS will defend the constitution

[Anonymous Coward]

I hope SCOTUS will defend the constitution

Eh, why start now?

Supreme Court

[Princeofcups]

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

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.

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

[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: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