National Security Letters Have Their Day in Court -- And Lose

| Sat Mar. 16, 2013 6:47 PM PDT

You remember National Security Letters, don't you? Those of us who are a first name basis just call them NSLs. They've been around for a while, but they only became famous after the PATRIOT Act vastly expanded their scope, with the FBI now issuing upwards of 25,000 NSLs a year. The key thing to know about NSLs is that (a) they don't require a judge to sign off on them, any old FBI supervisor will do; and (b) you are forbidden to tell anyone that you have received an NSL. In 2007, the Justice Department's inspector general found widespread abuse of the NSL process—hardly a surprise when there's no oversight—but the number of NSLs issued has continued its steady upward rise regardless.

Yesterday, a judge finally put her foot down:

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.

This is almost certainly only temporary good news. DOJ will appeal, and I suspect it's unlikely that Illston's order will be allowed to stand. Still, it's nice to see a bit of common sense over these things, even if it's ultimately only symbolic.

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