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

R. Jason Cronk rjc at
Mon Mar 18 07:33:07 PDT 2013

Assuming this order survives appeal or the government fails to appeal, 
the order would only apply to the plaintiff in the case. Further, any 
NSLs issued in this jurisdiction, the Northern District of California, 
would be presumptively unconstitutional, though a recipient would be 
advised to seek a court order saying as much. However, if the Supreme 
Court ruled it facially unconstitutional (as did the judge in this 
case), that would apply to all NSLs, past and future.


On 3/16/2013 6:03 PM, hwamyeon wrote:
> Does this only impact letters going forward? Or does it apply to past
> letters as well? It would be interesting to finally get some data on
> their past use and potential abuses.
> On 03/15/13 20:30, Katitza Rodriguez wrote:
>> Electronic Frontier Foundation Media Release
>> For Immediate Release: Friday, March 15, 2013
>> Contact:
>> 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
>> process.
>> 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
>>      -end-
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*R. Jason Cronk, Esq., CIPP/US*
/Privacy Engineering Consultant/, *Enterprivacy Consulting Group* 

  * phone: (828) 4RJCESQ
  * twitter:
  * blog:

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