Judge Susan Illston has ruled that the FBI’s pervasive use of National Security letters which were created by the Patriot Act is unconstitutional.
In doing so, she stated that their use (tens of thousands per year) is too broad. Fully 97% of them are issued without the recipients’ names are never mentioned.
"This pervasive use of nondisclosure orders, coupled with the government's failure to demonstrate that a blanket prohibition on recipients' ability to disclose the mere fact of receipt of an NSL is necessary to serve the compelling need of national security, creates too large a danger that speech is being unnecessarily restricted.”
- Judge Susan Illston, U.S. District Judge, San Francisco.
She also ordered the government to cease enforcing the gag provision in any other cases, but stayed the order for 90 days to allow the government to appeal to the Ninth District Circuit Court of Appeals.
This was in response to the EFF suit on behalf of Telcom against the government’s use of the NSL statute which it felt was unconstitutional. This came after the Justice Department sued Telcom for challenging the constitutionality of these ultra-secret NSL’s and the gag orders.
To be more specific, these NSLs are used 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.
Telcom took the (frankly) ballsy step of denying the government’s right to the documents by attacking the constitutionality of the NSL provisions of the Patriot Act. Specifically they argued that the statute violates the First Amendment.
“NSLs are written demands from the FBI that compel internet service providers, credit companies, financial institutions and others to hand over confidential records about their customers, such as subscriber information, phone numbers and e-mail addresses, websites visited and more.
The lack of court oversight raises the possibility for extensive abuse of NSLs under the cover of secrecy, which the gag order only exacerbates. In 2007 a Justice Department Inspector General audit found that the FBI had indeed abused its authority and misused NSLs on many occasions. After 9/11, for example, the FBI paid multimillion-dollar contracts to AT&T and Verizon requiring the companies to station employees inside the FBI and to give these employees access to the telecom databases so they could immediately service FBI requests for telephone records. The IG found that the employees let FBI agents illegally look at customer records without paperwork and even wrote NSLs for the FBI.”
This issue brings to a head two important issues. The government is charged to protect and defend us and the Constitution. Trying to do so however, must be done in a process which protects the individual while doing so in a secret manner. That usually is inherently impossible. These inherent contradictions can only be adequately addressed by a free Judiciary. The government must not be allowed to destroy our freedoms by their efforts to defend them, even if the motive is pure. To be honest, that is the only way the terrorists could destroy the United States.
Thank you, Judge Illston.