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[liberationtech] EFF: National Security Letters Are Unconstitutional, Federal Judge Rules

Katitza Rodriguez katitza at
Fri Mar 15 17:30:58 PDT 2013

Electronic Frontier Foundation Media Release

For Immediate Release: Friday, March 15, 2013


Matt Zimmerman
   Senior Staff Attorney
   Electronic Frontier Foundation
   mattz at
   +1 415 436-9333 x127

Cindy Cohn
   Legal Director
   Electronic Frontier Foundation
   cindy at
   +1 415 436-9333 x108 (office), +1 415 307-2148 (cell)

Kurt Opsahl
   Senior Staff Attorney
   Electronic Frontier Foundation
   kurt at
   +1 415 436-9333 x106

National Security Letters Are Unconstitutional, Federal
Judge Rules

Court Finds NSL Statutes Violate First Amendment and
Separation of Powers

San Francisco - A federal district court judge in San
Francisco has ruled that National Security Letter (NSL)
provisions in federal law violate the Constitution.  The
decision came in a lawsuit challenging a NSL on behalf of
an unnamed telecommunications company represented by the
Electronic Frontier Foundation (EFF).

In the ruling publicly released today, Judge Susan Illston
ordered that the Federal Bureau of Investigation (FBI) stop
issuing NSLs and cease enforcing the gag provision in this
or any other case.  The landmark ruling is stayed for 90
days to allow the government to appeal.

"We are very pleased that the court recognized the fatal
constitutional shortcomings of the NSL statute," said EFF
Senior Staff Attorney Matt Zimmerman.  "The government's
gags have truncated the public debate on these
controversial surveillance tools.  Our client looks forward
to the day when it can publicly discuss its experience."

The controversial NSL provisions EFF challenged on behalf
of the unnamed client allow the FBI to issue administrative
letters -- on its own authority and without court approval
-- to telecommunications companies demanding information
about their customers.  The controversial provisions also
permit the FBI to permanently gag service providers from
revealing anything about the NSLs, including the fact that
a demand was made, which prevents providers from notifying
either their customers or the public.  The limited judicial
review provisions essentially write the courts out of the

In today's ruling, 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.  In addressing the concerns of the
service provider, the court noted: "Petitioner was adamant
about its desire to speak publicly about the fact that it
received the NSL at issue to further inform the ongoing
public debate."

"The First Amendment prevents the government from silencing
people and stopping them from criticizing its use of
executive surveillance power," said EFF Legal Director
Cindy Cohn.  "The NSL statute has long been a concern of
many Americans, and this small step should help restore
balance between liberty and security."

EFF first brought this challenge on behalf of its client in
May of 2011.

For the full order:

For more on this case:

For this release:

About EFF

The Electronic Frontier Foundation is the leading
organization protecting civil liberties in the digital
world. Founded in 1990, we defend free speech online, fight
illegal surveillance, promote the rights of digital
innovators, and work to ensure that the rights and freedoms
we enjoy are enhanced, rather than eroded, as our use of
technology grows. EFF is a member-supported organization.
Find out more at


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