The Justice Dep’t. filed a secret lawsuit against Google to try to force it to give up user data without a search warrant: This after a different court ruled the process unconstitutional. There’s nothing short of the First and Fourth Amendments at stake here. This is yet more fallout from the Patriot Act.
The Federal prosecutors are truly determined to keep the “right” to warrantless searches of your data. Google is just as determined to prevent it, terming the Justice Dep’t. demands illegal.
The Justice Dept’s demands center around “National Security Letters” (NSLs) which was a key part of the Patriot Act (2001) that allowed the FBI to demand information from Internet providers without any Federal search warrant. U.S. District Judge Victor Marrero has barred the FBI from invoking that portion of the law in the future, saying the mandatory gag orders amount to an "unconstitutional prior restraint of speech in violation of the First Amendment."
“The 2001 law requires Internet service providers and any other type of communication provider--including telephone companies--to comply with secret "national security letters" from the FBI. Those letters can ask for information about subscribers--including home addresses, what telephone calls were made, e-mail subject lines and logs of what Web sites were visited.
The recipient of a national security letter (NSL) is forever gagged against disclosing its existence "to any person"--a strict requirement that the ACLU argued could not be squared with the U.S. Constitution.
“All but the most mettlesome and undaunted NSL recipients would consider themselves effectively barred from consulting an attorney or anyone else who might advise them otherwise," Marrero concluded, "as well as bound to absolute silence about the existence of the NSL...For the reasonable NSL recipient confronted with the NSL's mandatory language and the FBI's conduct related to the NSL, resistance is not a viable option." – c|net
What’s the size of the problem? An IG report found the FBI made 50,000 such NSL demands (sorry, but a “request”, it isn’t) and 97% had the “mandatory gag order” attached. NSLs can demand user profile information, but the law does not permit them to be used to obtain the text of e-mail messages or most log files, which they did do (apparently).
Google has fought this in the past (2006) and mostly won.
The Justice Dep’t has filed a “petition to enforce” in Manhattan in order to circumvent Google's right to due process and Judge Illston (see my prior article URL below) which has only partially succeeded as Judge Illston has promised to revisit the subject should Google desire.
Also, it should be noted that the Justice Dep’t/FBI has many tools to deal with requests for information which (however) require judicial review, i.e. subpoenas, court orders, search warrants, wiretap orders, pen registers, sneak and peek warrants, and surveillance under the Foreign Intelligence Surveillance Act.
You should read the source article here:
I think that if there’s a “ticking bomb”, then that’s one dire situation and a judge can issue an emergency order. Mostly, it would appear these NSLs aren’t being used that way and the request for even more (i.e. the headers, etc. information) is an illegal abuse.
More: The portion of the Patriot Act denying the right to legal opinion through a lawyer is patently unconstitutional and must be redrafted. Also, this “petition to enforce” and the petitioner should receive a judge’s ire, since it is clearly an abuse designed to neutralize due process.
Our government was designed to work a certain way to protect citizens. It would be the ultimate irony if al-Qaida succeeds in destroying that by causing such legislation.
What do you think? That means reflection, and not a ‘knee jerk’ reaction.
Note: You can view my prior article regarding NSLs and the “mandatory gag orders” here: