Sunday, April 28, 2013

FBI Gag Orders Ruled Unconstitutional

Photo Courtesy of Wikipedia

The Ninth Circuit Court of Appeals ruled in March that the gag orders, which accompany the FBI’s national security letters, are unconstitutionally violating people’s rights to free speech. The case brought to court was from an “unnamed telecommunications company” after it received a letter requesting subscriber information. The letter also stated that alerting those subscribers would be a national threat.

The Electric Frontier Foundation, in May 2011, brought the lawsuit against the National Security Letter statutes--18 U.S.C. § 2709 and parts of 18 U.S.C. § 3511. The “Counterintelligence access to telephone toll and transactional records” statutes state that the FBI may subpoena telecommunication records.

U.S. District Judge Susan Illston on March 19, 2013, in Northern California, granted the EFF’s request and ruled that the gag orders violate both the First and the Fourth Amendments.

According to the EFF:
“The court held that the gag order provisions of the statute violate the First Amendment and that the review procedures violate separation of powers. Because those provisions were not separable from the rest of the statute, the court declared the entire statute unconstitutional” (“National Security Letters Are Unconstitutional, Federal Judge Rules,” Electronic Frontier Foundation).

The judge ordered the FBI to stop issuing the letters and stop enforcing the gag orders, because the provisions do not overcome the presumption against prior restraint.

The ALCU and the NYLCU argued that the National Security Letters and the accompanying gag orders violated the First, Fourth and Fifth Amendments “by allowing the FBI to obtain private information without any form of judicial review. The plaintiffs further argued that Section 2709’s non-disclosure provision is an unlimited suppression of free speech that indefinitely burdens First Amendment rights,” according to the NYCLU.

2011 brought about a partial lift of the FBI’s gag order on the case, which allowed Nicholas Merrill, of Calyx Internet Access, to reveal himself as ALCU’s main client in this case.

The original National Security Letter statute was passed in 1986, and according to EFF, “the FBI has issued hundreds of thousands of such letters seeking the private telecommunications and financial records of Americans without any prior approval from courts.”

In 2004, a similar case was brought to court by the American Civil Liberties Union on behalf of another unnamed telecommunication company against John Ashcroft, as the Attorney General (American Civil Liberties Union v. Ashcroft, 2004). The judge in this case, Victor Marrero of the United States District Court for the Southern District of New York, struck own the National Security Letters section of the Patriot Act.

The rulings in these cases come for many people as a victory for freedom, or at least a step in the right direction.


“National Security Letters Are Unconstitutional, Federal Judge Rules”

“18 USC § 2709 - Counterintelligence access to telephone toll and transactional records”

“Doe v. Holder (Challenging Patriot Act’s National Security Letter provision and associated gag provision)”

“ACLU & Doe v. Ashcroft - the Good Bits”

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