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Security Letters In The Lurch

So this happened:

They’re called national security letters and the FBI issues thousands of them a year to banks, phone companies and other businesses demanding customer information. They’re sent without judicial review and recipients are barred from disclosing them.

On Friday, a federal judge in San Francisco declared the letters unconstitutional, saying the secretive demands for customer data violate the First Amendment.

The government has failed to show that the letters and the blanket non-disclosure policy “serve the compelling need of national security,” and the gag order creates “too large a danger that speech is being unnecessarily restricted,” U.S. District Judge Susan Illston wrote.

She ordered the FBI to stop issuing the letters, but put that order on hold for 90 days so the U.S. Department of Justice can pursue an appeal to the 9th U.S. Circuit Court of Appeals.

The NSL’s do not allow agents to examine the content of communications, but look for patterns. But there is zero judicial oversight and, as mentioned, the gag order prevents recipients of NSL’s from even telling people what they’re doing, placing them under enormous stress.

I suspect — or maybe hope is the right word — that the Ninth Circus will also have issues with the security letters on both First and Fourth Amendment grounds (they recently put limits on the governments ability to search your computer at the airport). The FBI issues tens of thousands of these a year and a 2007 investigation found that they were very lax in following the few rules that applied to them (Surprise! A federal agency was abusing the rules in the absence of oversight!). The Second Circuit demanded the FBI notify recipients that they can challenge the gag order in Court but EFF is of the opinion that it’s not enough and it’s not being done consistently.

The secretive NSL’s create another issue beyond First and Fourth Amendment concerns. One of the problems with challenging the Surveillance State is that people being surveilled often don’t know it. This makes it very difficult to challenge surveillance powers in Court because, in the Clapper decision last week, SCOTUS ruled that challengers lack standing unless they personally have been subject to a problematic search. This puts civil libertarians in a catch-22. You can’t know if you’re being surveilled but you can’t challenge the law unless you know you’re being surveilled.

In the end, a lot of this is going to end up in the lap of the Supreme Court. I have little faith that they will rein in the government now that Stephens is gone. But it’s possible, given Scalia’s occasional sympathies toward civil liberties, that the facade of unilateral unlimited government surveillance power could be cracked.

7 comments

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  1. Mississippi Yankee says:

    The 9th U.S. Circuit Court of Appeals has ‘schooched’ just a tiny bit to the right in the past 7-8 years so this all could become very interesting. I just with stories such as these could be read by a nuch larger group of folks. Let’s hope the MSM’s muzzle on this (and other) stories unflattering to the High Command get more air time as a new right leaning network comes on line this summer.

    I also look forward to you and/or Alex’s thoughts to the “can’t happen here” crowd concerning the EU’s proposed 6.9 to 9.9% savings account grab in Cypress.
    Perhaps Brussels can borrow some tanks and ammo from the DHS.

    Telling someone you wished they lived in interesting times used to be considered an insult, now it’s more like saying Good Morning. Or in this case Guten Morgen!

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  2. ilovecress says:

    MY and Hal – if these security letters are found unconstitutional – then does that have any effect on convictions retroactively?

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  3. Hal_10000 says:

    I also look forward to you and/or Alex’s thoughts to the “can’t happen here” crowd concerning the EU’s proposed 6.9 to 9.9% savings account grab in Cypress.
    Perhaps Brussels can borrow some tanks and ammo from the DHS.

    I think it’s a good illustration of why it can’t happen here. The Euro is expected to crash tomorrow morning. There is already a run on the banks. It’s not even clear it’s going to pass.

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  4. Section8 says:

    Totally off topic:

    Ok, there was a big women’s convention; international, thousands attended.

    First woman gets up to speak from America. She says she told her husband no more sex until you help around the house.

    First day she saw nothing
    Second day she saw nothing
    Third day, she saw the laundry was done and the house was all clean.

    The crowd of women cheered.

    The second woman gets up to speak from France. She says she told her husband no more sex until you help around the house.

    First day she saw nothing
    Second day she saw nothing
    Third day she saw the lawn was mowed and the weeds were all cleaned out.

    The crowd or women cheered.

    The third woman gets up to speak from Ireland. She says she told her husband no more sex until you help around the house.

    First day she saw nothing
    Second day she saw nothing
    The third day she could see a little out of her left eye.

    Happy St Patty’s day everyone!

    That joke kills me.

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  5. Biggie G says:

    if these security letters are found unconstitutional – then does that have any effect on convictions retroactively?

    The convictions would be appealed, but our judicial system doesn’t really have any mechanism for instantly vacating the convictions and freeing every one. I think that each case would be looked at under its own merit and a judge would determine how much evidence came out of these warrants and what evidence that led to. If these illegal procedures built the whole case then the conviction can be overturned. If it was a very small part, the conviction could stand or a retrial ordered without use of the tainted evidence,

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  6. West Virginia Rebel says:

    Meanwhile, also OT but it looks like the future of freedom of the press is in jeopardy in the UK, mainly because celebrity hacking (which I thought there were already laws against).

    Leave it to Hugh Grant to screw somebody over once again.
    West Virginia Rebel recently posted..Dead Man DecayingMy Profile

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  7. Mississippi Yankee says:

    I t

    hink it’s a good illustration of why it can’t happen here.

    Again with the naivete’ of a 12 year old prepubescent.

    Got any IRA or ROTH IRAs? Pension funds? Or have you moved most of your assets “down under” thinking “it can’t happen there” either?

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