In-depth explanation of EFF's courtroom victory over the FBI's "National Security Letters"

Last week, we brought you the wonderful news that a district court in San Francisco had struck down the law that allowed the FBI to issue its own "National Security Letters" (NSLs) -- secret search-warrants with permanent gag orders. Now, Matt Zimmerman, a senior staff attorney at the Electronic Frontier Foundation (who brought the case on behalf of an unnamed telco), explains in depth what EFF asked the court to recognize, how far they got, and what happens next:

The court made five critical findings. First, Judge Illston quickly rejected the government's dangerous argument that NSL recipients had no power to review the constitutionality of the statute. The government had suggested that the court could only review specific problems with specific NSLs, meaning that larger structural problems with the statute would remain untouched. As the court correctly noted, however, the statute specifically allows a court to determine whether an NSL is "unreasonable" or "unlawful" which includes determining whether the statute itself is unconstitutional.

Second, the district court found that the statute impermissibly authorizes the FBI to limit speech without constitutionally-mandated procedural protections. The Supreme Court articulated the scope for such protections in 1965 in Freedman vs. Maryland, a case in which it struck down a Maryland licensing scheme that required films to be submitted to a government ratings board prior to public showings. The problem with the statute wasn't necessarily its substantive reach as it was possible that films could be banned without violating the First Amendment -- if, for example, they met the First Amendment definition of "obscene." Instead, the court was concerned that the procedures for challenging a ban stacked the deck against theater owners...

... Fourth, the district court found that the statute was not "severable," meaning that Congress designed the NSL tool as a whole and that the powers it granted to the FBI were not intended to function separately if one of the powers was found to be unconstitutional. Because the nondisclosure provision was found to be unconstitutional on its face, the power to compel the disclosure of customer records must also fall. NSL statistics are consistent with this observation: 97% of all NSLs are delivered with a gag order.

Finally, the district court found that, regardless of other failings, the statute's standard of review violated separation of powers principles by forcing the courts to defer to the FBI's determinations and preventing independent review. It noted that a "[c]ourt can only sustain nondisclosure based on a searching standard of review." While courts do largely defer to the executive branch's judgment in national security matters, the standard in this statute required the court to consider the government's decision "conclusive" and only allowing the court to consider whether it was made in "bad faith." The court rightly noted that real judicial review requires more.

In Depth: The District Court's Remarkable Order Striking Down the NSL Statute



  1. Oh, it’s wonderful and all, but I’m sure the artful dodgers will come up with some new clever legalspeak way to keep their jack boot on the backs of our necks.

  2. Part of me wants to believe some sort of overly optimistic conspiracy theory is at work. That Obama is behind it all, slowly trying to build a legal precendent for future administrations that would require them to be more transparent.

    What can I say, I like science fiction.

      1.  No, this is all pretty simple: no President wants to be the one on whose watch the next 9/11 happens, because we all know that is coming some day. So Obama, like Bush, will seek whatever powers and privileges they can to deter that from occurring. And the FBI and Justice, seeing the opportunity to take advantage of a massive and superpowered legal loophole, will abuse the hell out of these powers because hey, why not, right? They have political quotas to fulfill as well.

        The question now is will the current Supreme Court side with what law enforcement wants to will they side with the Constitutional protections? It’s really hard to say, because they sway so easily between both ideological polarities, and their rhetoric on either subject is often extreme.

        And before I get smacked around, I’m not happy about how the Obama administration has handled this issue, but I think it’s pretty obvious why they’ve reversed themselves and seek to keep this privilege. Doesn’t make it right, not one bit.

        1. …no President wants to be the one on whose watch the next 9/11 happens…

          Why? It’ll be another perfect excuse to seize more power and exert more control. Some politicians have even publicly wished for another such event because it would further their agendas. There’s a whole passel of people who think that Armageddon is a good thing.

    1.  Yeah… well… if you’d bother to follow the jump maybe you wouldn’t be missing something.

      1.  I did, but really, if you’re going to post such a large portion of it to summarize the result, it’s a bit of a glaring omission.

  3. So does this mean that the government is now required to reveal intended targets of former NSLs?

    1. As far as I can tell from the news here and elsewhere, the court has struck down NSLs generally, but I haven’t yet seen any news saying past NSL recipients/targets must be disclosed. Granted, I have incomplete information and need to read the full judgement.

      If history is any indication, the FBI and other National Security orgs will probably make two arguments against disclosure of past NSLs:

      1. That disclosure is detrimental to National Security and 2. That disclosure of targets and recipients would jeopardize the privacy of both the recipient and the target even when specific subscriber records and info are withheld.

      1. Just read the EFF article. The judgment has been stayed in order to allow the government its appeal. So we can expect that the FBI and other orgs may still be using NSLs and sending new ones currently since the legal finding of unconstitutionality is yet to be made final.

        It looks like it’ll go to the 9th circuit, then the supreme court. Which means while this is still a triumph, the judgement may still be struck down, or altered. And we still have more waiting to do before it can possibly go into effect.

        1. I bet the 9th Circuit Court will not agree with this decision.  But I think we all know this is a Supreme Court decision, no matter what.  Why bother with the lower courts?

          …asked the taxpayer.

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