Federal Court Invalidates 11-Year-old FBI Gag Order On NSL Recipient

vivaoporto writes: The Calyx Institute reports that an 11-year-old gag order has been lifted from the recipient of a National Security Letter served by the FBI in 2004. A federal court found there wasn't a "good reason" to keep the man, Nicholas Merrill, from talking about it, "nor has the Government provided the Court with some basis to assure itself that the link between disclosure and risk of harm is substantial." The judge who invalidated the gag order, Victor Marrero, is the same judge that struck down a portion of the revised USA PATRIOT Act in 2007, forcing investigators to go through the courts to obtain approval before ordering ISPs to give up information on customers, instead of just sending them a National Security Letter. After a 90-day waiting period (for the government to mull an appeal), Merrill will be able to say whatever he wants about the case, finally completing the partial victory he managed back in 2010.

Comments

They still have a 90 day gag

[nobuddy]

To allow for appeals. A great step forward, but not yet a victory.

Re:They still have a 90 day gag

[mcl630]

That doesn't really apply here. Merrill runs an ISP and the NSL was (presumably) for information on one or more of his customers. Disclosing what types of information the FBI wanted still wouldn't tell you which customer(s) they were investigating. And its a moot point anyways, as the FBI admits the case(s) was/were closed years ago. There's no possible justification left here for a gag order.

NSLs were intended for time-sensitive extreme cases where the suspect(s) can't be tipped off, but the FBI issues thousands per year, so clearly they're not just using them for the extreme cases. And trying to keep a gag order in place 11 years after it was issued (and supposedly time-sensitive) goes far beyond "stretching the law".

11 years later the die has been cast

[xxxJonBoyxxx]

>> A federal court found there wasn't a "good reason" to keep the man from talking about it ...because 11 years ago there was still a debate raging about "whether" we should be under surveillance at all times, whereas the debate has now shifted to "how" we are under surveillance at all times.

I've said it before, but...

[DoofusOfDeath]

we don't arrest, try, and if convicted, punish nearly enough FBI, NSA, and CIA agents.

Freedom?

[Moof123]

11 years to get justice is not something we should be proud of. How we can argue our system of laws and democracy is any sort of role model is completely lost on me.

Re:Freedom?

[Moof123]

My guess is the guy really was not even dealing with anything all that important. Time and again when the veil has finally been pulled back there have been only benign things being protected. What we have seen is a pattern where warrants are too hard, or the evidence for one is too shaky, so an NSL is an easy way to get the same thing done without all those annoying due process steps to deal with.

It is the corollary to the TSA security theater. "National Security" gets waived around like some trump card to get around our rights even when it is completely unwarranted.

Re:Freedom?

[silas_moeckel]

NSL's lack consequence to those that are writing them. If they are going to stay around they need personal consequences to whoever ordered them and attested to anything in them if they are found to be invalid, overreaching etc etc. That needs to be coupled with the government automatically paying all legal costs win or lose. Nobody should have to be out of pocket to defend their basic rights from the government.

Every single gag order needs to have an expiration

[gurps_npc]

These things should, as a matter of law, have an expiration date set when they are declared. Let the US government come in and argue to extend it all they want, but they should all come with an automatic expiration date.

In addition, any and all "statue of limitations" should res-start for any information that that was gagged.

Same thing for non-disclosure and confidentiality agreements - not to exceed 10 years.

Are you paid by the government to do a job?

[Thing 1]

If not, then they have no say over your non-harming actions -- just as Walmart cannot fine me for violating their internal policies, but they can fine their workers. If you harm someone, then you're going to face consequences, whether through Common Law, or through vigilantism.

But, they don't want anybody to understand that their rules only apply to their employees. Which is why they crack down on people distributing FIJA fliers (from http://fija.org/ -- note that they take Bitcoin donations now!) outside of courthouses.

The Constitution guarantees a freedom of expression in the first amendment. It does not say, "This amendment is inferior to NSA letters"; it says, and I quote, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

The existence of "government classified information" precisely indicates the existence of "government conspiracies." A conspiracy is when two or more people work together, when one or more other people don't know about it. A surprise party is a benign form of conspiracy. Malicious forms include the mafia, the Patriot Act, etc.

Now, were I in his position, would I speak freely? That's a difficult one; I like my freedom, but then again I'm a shard of light and I'll return to the Creator so it doesn't really matter what happens to this corpse. Still, I avoid pain.

Judicial Activism

[Grishnakh]

The judge who invalidated the gag order, Victor Marrero, is the same judge that struck down a portion of the revised USA PATRIOT Act in 2007, forcing investigators to go through the courts to obtain approval before ordering ISPs to give up information on customers, instead of just sending them a National Security Letter.

Uh-oh, it's one of those activist judges again!! How dare a judge stand up for our rights!

Re:Leak it

[Moof123]

These have been written to even exclude your lawyer with lots of scare tactics. Lots of statutes like obstructing justice give broad capability to go after you. We are all un-indicted felons in some way. All it takes is a determined enough prosecutor and enough apathy on the public's part..

Great American Hero

[PopeRatzo]

Sometimes, the really great men go unsung:

The judge who invalidated the gag order, Victor Marrero, is the same judge that struck down a portion of the revised USA PATRIOT Act in 2007, forcing investigators to go through the courts to obtain approval before ordering ISPs to give up information on customers, instead of just sending them a National Security Letter.

Judge Marrero, we salute you.

Re:Every single gag order needs to have an expirat

[cbhacking]

Nice concept, but you realize the 20% limit just means that, if they're at their limit and want to extend another one, the "solution" (from their perspective) is to just issue another four gag orders to whoever they can possibly get one on, right? That's the problem with systems like this; when the system is already being abused (and if it can be abused, it will be) then the easiest solution any time they run into a soft limit like you describe is "more abuse".

Re:Leak it

[TheGratefulNet]

it blows my mind that the US gov can attack a citizen like this and also scare punishment into him for his LEGAL RIGHT to seek a lawyer when being legally confronted.

no lawyer? how is that possible? I know, it was all back room laws that we were not meant to have input on. but still, this is a french-revolution style injustice. if heads needed to roll in modern times, this would be one qualifying event.

you want to put legal shit on me? AND deny me any right to even examine this and see if there was just cause? unbelievable! well, actually, given how things now are, its completely believable and that's the biggest shame of all. that we now don't even bat an eye when shit like this happens.

New TLD request: .canary

[RealGene]

So that everyone could simply have a web page stating "As of today's date, your name has not received a National Security Letter".
It's not against the law to remove a web page (yet).