7 ms·

Federal Court Invalidates Gag Order on National Security Letter Recipient

264 points by jeo1234 11y ago

bitwize 11y ago
He's represented by law students? This puts the image in my head of Amanda Seyfried arguing in open court that a teddy bear has rights. I'm actually surprised his case got anywhere, never mind to this level of victory. No disrespect to any law students, but if you're going to step to the national security state, your law game had better be "A".
- spacemanmatt 11y ago
  It took them 10 years...
  - TrevorJ 11y ago
    My impression of the legal system is that that's movin' pretty quick.
    - msandford 11y ago
      True, but still incredibly contrary to the Bill of Rights. https://en.wikipedia.org/wiki/United_States_Bill_of_Rights#Sixth_Amendment https://en.wikipedia.org/wiki/United_States_Bill_of_Rights#S... I wouldn't consider over 10% of one's life expectancy (at least for now) to be "speedy"
      - michaelhoffman 11y ago
        That section starts "In all criminal prosecutions" This is not a criminal prosecution. It is a civil suit.
        aqwwe 11y ago
        you can't go to jail for violating a gag order then?
        DannyBee 11y ago
        If someone did and it took 10 years to resolve, that'd be an issue (Note: A lot of states have deadlines on appeal resolution, etc, for criminal cases)
        JoshTriplett 11y ago
        So they should have to actually break the law to get justice in a timely fashion? If you're being affected by a law that would see you face criminal charges, challenging it ought to be as timely as those criminal charges; otherwise, it's all too easy to set situations like this up. While I look forward to the first instance of someone standing up and very publically and broadly violating an NSL to get such an abomination into a real court, that shouldn't be a necessary step. The whole mess needs abolishing, but in the interim, 10 years is about 9.95 years too long.
        Lawtonfogle 11y ago
        >So they should have to actually break the law to get justice in a timely fashion? Kinda like how you have to show you've been harmed to sue someone. Nice rules in theory, but in practice the government will use them like loopholes to keep themselves out of trouble.
        DannyBee 11y ago
        These rules do not exist because the government used them as loopholes, these rules exist because citizens used them as loopholes to sue other citizens :) The government was already protected. For example, you literally cannot sue the US government for torts without its permission. This has been absolute since day 1 of our government. The government has decided to abrogate immunity in a bunch of situations, but in general, the government was already protected from whatever it wanted to be.
- rayiner 11y ago
  He's represented by Yale's legal clinic.
- ScottBurson 11y ago
  Perhaps this speaks to the weakness of the government's case. I don't know how long these gag orders should remain in force, but they clearly need to expire at some point, and 11 years is clearly long enough. I hope other NSL recipients are emboldened by this outcome to file similar suits.
  - duskwuff 11y ago
    If nothing else, there's absolutely no reason for a gag order to be allowed to outlive the investigation that it was supposed to protect.
    - lsaferite 11y ago
      I'm fairly confident, in this case, they are using the gag order as a way to hide investigative methods. It's the same reason they try so hard to suppress stingrays being brought into the light. They don't want their opponent to know what they are looking for or how they find them.
      - fnordfnordfnord 11y ago
        >They don't want their opponent to know what they are looking for or how they find them. That is a tired old excuse. I think it's safe to say that cat is out of the bag now. The government wants to protect these methodologies from disclosure because they are in fact unconstitutional, and disclosure (as in part of the official public record) threatens existing convictions as well as present and future investigations. Additionally, there is probably more than a little bit of paranoia within gov't that someone might get in hot water over the illegal things they've been up to; though I'll believe that's a real fear after I see a gov't agent actually go to jail.
- s_q_b 11y ago
  This really speaks to your ignorance regarding public interest law. Because cases that have little impact beyond pure Constitutional law often have little profit upside, law clinics are one of the mechanisms by which such cases reach the appellate level and the Supreme Court. The students that work on them often go on to prestigious Federal clerkships, major law firms, etc. The law clinic at Yale, as one would expect, is extremely well-regarded.
  - hackuser 11y ago
    I understand that's the way it is. I think it's a problem; the most important issues should have the best attorneys.
- jljljl 11y ago
  "and supervising attorneys"
- jordanlev 11y ago
  Well, obviously it is if they won the case!
themartorana 11y ago
I know gag orders exist in certain frameworks for very well specified amounts of time - like a jury in session, for instance - but being able to gag someone from speaking about warrantless abuses in order to keep them from debating the harm of warrantless abuses is horrific. Thank goodness this court invalidated the order. Whether or not this ruling heads up the chain will likely be indication of how tenuous the FBI assumed this program was to begin with.
- interesting_att 11y ago
  I still experience cognitive dissonance when I remember that we have a Democratic president who promised to rein in the NSA in '08. I genuinely wonder how his penchant for secrecy will affect Obama's legacy.
  - TeMPOraL 11y ago
    > I still experience cognitive dissonance when I remember that we have a Democratic president who promised to rein in the NSA in '08. Maybe he really wanted to, but then got told by the NSA that, in fact, he is not allowed to do it, and then got a gag order to speak of it no more.
    - coldcode 11y ago
      Hmm I wonder if a sitting President can get a gag order. Seems to violate the constitution but then again that rarely seems to matter today.
      - lettergram 11y ago
        He could basically ignore it. Whos going to enforce it? Only threat is impeachment, but I would doubt that will pass unless the president was trying to damage the nation outright.
    - cryoshon 11y ago
      Doesn't matter. The President can always run to other executive agencies (Law enforcement agencies instead of intelligence agencies or vice versa), the military, congress, provincial political strongholds, or the public if such a backdoor coup were to be attempted.
jayess 11y ago
You can check out the full docket: https://www.unitedstatescourts.org/federal/nysd/435978/ https://www.unitedstatescourts.org/federal/nysd/435978/
ersii 11y ago
It's also worth mentioning that the Federal Bureau of Investigations (FBI) also served the non-profit Internet Archive (IA) a National Security Letter (NSL) in 2007. After a joint lawsuit filing of the Electronic Frontier Foundation (EFF) and American Civil Liberties Union (ACLU) challenging the NSL, the gag order and the constitutionality of the NSL on behalf of the IA - the FBI withdrew the NSL as well as the gag order. [1] As such, the gag order and NSL was never invalidated in IA, Brewster Kale (ACLU, EFF) vs. FBI. [1] https://www.aclu.org/internet-archives-nsl-challenge https://www.aclu.org/internet-archives-nsl-challenge
rurban 11y ago
Summary: So the Patroit/Freedom Act enables a police state where FBI agents can get all customer information and transaction records from an american company without any judge or warrant involved, and everything stays secret for decades. (not talking about Presidential Executive Orders yet) Who wants to engage into any kind of business with an American partner with this kind of police state? I think even in China the police needs to gets warrants.
- deleted 11y ago
  [deleted]
- happyscrappy 11y ago
  Is there any example of a company not doing business with the US because they actually believe it is a police state? If not why not?
  - mbrutsch 11y ago
    http://www.whoishostingthis.com/blog/2015/05/20/snowdens-global-impact/ http://www.whoishostingthis.com/blog/2015/05/20/snowdens-glo...
    - happyscrappy 11y ago
      Apple in China is not a good example for obvious reasons and yes Russia may one day make their own chips. Probably the closest is Cisco in China.
chinathrow 11y ago
Some background: https://en.wikipedia.org/wiki/Nicholas_Merrill https://en.wikipedia.org/wiki/Nicholas_Merrill
- fnordfnordfnord 11y ago
  Thank you to Nicholas Merrill. edit: added to
  - chinathrow 11y ago
    No, I'm not that guy - I had to google the case myself and thought others would need to as well.
calgoo 11y ago
A question regarding the appeal process: So if he releases the information before the government reaches the appeal court, is that illegal? Is there normally something that says "You have X time to bring this the the appeal court, if not you loose the right?"
- rayiner 11y ago
  In general, a district court's order is effective immediately, regardless of whether the other party intends to appeal. In a case like this where the activity at issue cannot be "undone" the district court may specify the order to become effective at some point in the future, as here: > The Court’s order will go into effect in 90 days. Mr. Merrill will remain gagged for that period, in order to allow the government time to decide whether to appeal the decision. The government has 60 days to file an appeal. But even filing the appeal won't by itself prevent the district court's order from going into effect. It'll have to file a motion for stay, and the appellate court will have to decide to keep the district court order from going into effect pending appeal. The decision of that motion will be an early look into what the appellate court is thinking. The standard for granting a stay requires the appellate court to conclude that the appellant (here, the government) has a likelihood of succeeding on the merits of the appeal.
  - calgoo 11y ago
    Thanks! Just what I wanted to know. Must have missed that part from the article regarding the 90 Days.
lakeeffect 11y ago
What happens if you violate one of these orders?
- digler999 11y ago
  And what happens if you deliberately avoid any attempts by them to contact you ? Don't answer the door, don't acknowledge them, dont sign anything, etc. How can you enter into an agreement you haven't even acknowledged ?

264 points by jeo1234 11y ago

He's represented by law students? This puts the image in my head of Amanda Seyfried arguing in open court that a teddy bear has rights. I'm actually surprised his case got anywhere, never mind to this level of victory. No disrespect to any law students, but if you're going to step to the national security state, your law game had better be "A".

spacemanmatt 11y ago
It took them 10 years...
- TrevorJ 11y ago
  My impression of the legal system is that that's movin' pretty quick.
  - msandford 11y ago
    True, but still incredibly contrary to the Bill of Rights. https://en.wikipedia.org/wiki/United_States_Bill_of_Rights#Sixth_Amendment https://en.wikipedia.org/wiki/United_States_Bill_of_Rights#S... I wouldn't consider over 10% of one's life expectancy (at least for now) to be "speedy"
    - michaelhoffman 11y ago
      That section starts "In all criminal prosecutions" This is not a criminal prosecution. It is a civil suit.
      - aqwwe 11y ago
        you can't go to jail for violating a gag order then?
        DannyBee 11y ago
        If someone did and it took 10 years to resolve, that'd be an issue (Note: A lot of states have deadlines on appeal resolution, etc, for criminal cases)
        JoshTriplett 11y ago
        So they should have to actually break the law to get justice in a timely fashion? If you're being affected by a law that would see you face criminal charges, challenging it ought to be as timely as those criminal charges; otherwise, it's all too easy to set situations like this up. While I look forward to the first instance of someone standing up and very publically and broadly violating an NSL to get such an abomination into a real court, that shouldn't be a necessary step. The whole mess needs abolishing, but in the interim, 10 years is about 9.95 years too long.
        Lawtonfogle 11y ago
        >So they should have to actually break the law to get justice in a timely fashion? Kinda like how you have to show you've been harmed to sue someone. Nice rules in theory, but in practice the government will use them like loopholes to keep themselves out of trouble.
        DannyBee 11y ago
        These rules do not exist because the government used them as loopholes, these rules exist because citizens used them as loopholes to sue other citizens :) The government was already protected. For example, you literally cannot sue the US government for torts without its permission. This has been absolute since day 1 of our government. The government has decided to abrogate immunity in a bunch of situations, but in general, the government was already protected from whatever it wanted to be.
rayiner 11y ago
He's represented by Yale's legal clinic.
ScottBurson 11y ago
Perhaps this speaks to the weakness of the government's case. I don't know how long these gag orders should remain in force, but they clearly need to expire at some point, and 11 years is clearly long enough. I hope other NSL recipients are emboldened by this outcome to file similar suits.
- duskwuff 11y ago
  If nothing else, there's absolutely no reason for a gag order to be allowed to outlive the investigation that it was supposed to protect.
  - lsaferite 11y ago
    I'm fairly confident, in this case, they are using the gag order as a way to hide investigative methods. It's the same reason they try so hard to suppress stingrays being brought into the light. They don't want their opponent to know what they are looking for or how they find them.
    - fnordfnordfnord 11y ago
      >They don't want their opponent to know what they are looking for or how they find them. That is a tired old excuse. I think it's safe to say that cat is out of the bag now. The government wants to protect these methodologies from disclosure because they are in fact unconstitutional, and disclosure (as in part of the official public record) threatens existing convictions as well as present and future investigations. Additionally, there is probably more than a little bit of paranoia within gov't that someone might get in hot water over the illegal things they've been up to; though I'll believe that's a real fear after I see a gov't agent actually go to jail.
s_q_b 11y ago
This really speaks to your ignorance regarding public interest law. Because cases that have little impact beyond pure Constitutional law often have little profit upside, law clinics are one of the mechanisms by which such cases reach the appellate level and the Supreme Court. The students that work on them often go on to prestigious Federal clerkships, major law firms, etc. The law clinic at Yale, as one would expect, is extremely well-regarded.
- hackuser 11y ago
  I understand that's the way it is. I think it's a problem; the most important issues should have the best attorneys.
jljljl 11y ago
"and supervising attorneys"
jordanlev 11y ago
Well, obviously it is if they won the case!

themartorana 11y ago

I know gag orders exist in certain frameworks for very well specified amounts of time - like a jury in session, for instance - but being able to gag someone from speaking about warrantless abuses in order to keep them from debating the harm of warrantless abuses is horrific. Thank goodness this court invalidated the order. Whether or not this ruling heads up the chain will likely be indication of how tenuous the FBI assumed this program was to begin with.

interesting_att 11y ago
I still experience cognitive dissonance when I remember that we have a Democratic president who promised to rein in the NSA in '08. I genuinely wonder how his penchant for secrecy will affect Obama's legacy.
- TeMPOraL 11y ago
  > I still experience cognitive dissonance when I remember that we have a Democratic president who promised to rein in the NSA in '08. Maybe he really wanted to, but then got told by the NSA that, in fact, he is not allowed to do it, and then got a gag order to speak of it no more.
  - coldcode 11y ago
    Hmm I wonder if a sitting President can get a gag order. Seems to violate the constitution but then again that rarely seems to matter today.
    - lettergram 11y ago
      He could basically ignore it. Whos going to enforce it? Only threat is impeachment, but I would doubt that will pass unless the president was trying to damage the nation outright.
  - cryoshon 11y ago
    Doesn't matter. The President can always run to other executive agencies (Law enforcement agencies instead of intelligence agencies or vice versa), the military, congress, provincial political strongholds, or the public if such a backdoor coup were to be attempted.

jayess 11y ago

You can check out the full docket: https://www.unitedstatescourts.org/federal/nysd/435978/ https://www.unitedstatescourts.org/federal/nysd/435978/

ersii 11y ago

It's also worth mentioning that the Federal Bureau of Investigations (FBI) also served the non-profit Internet Archive (IA) a National Security Letter (NSL) in 2007. After a joint lawsuit filing of the Electronic Frontier Foundation (EFF) and American Civil Liberties Union (ACLU) challenging the NSL, the gag order and the constitutionality of the NSL on behalf of the IA - the FBI withdrew the NSL as well as the gag order. [1] As such, the gag order and NSL was never invalidated in IA, Brewster Kale (ACLU, EFF) vs. FBI. [1] https://www.aclu.org/internet-archives-nsl-challenge https://www.aclu.org/internet-archives-nsl-challenge

rurban 11y ago

Summary: So the Patroit/Freedom Act enables a police state where FBI agents can get all customer information and transaction records from an american company without any judge or warrant involved, and everything stays secret for decades. (not talking about Presidential Executive Orders yet) Who wants to engage into any kind of business with an American partner with this kind of police state? I think even in China the police needs to gets warrants.

deleted 11y ago
[deleted]
happyscrappy 11y ago
Is there any example of a company not doing business with the US because they actually believe it is a police state? If not why not?
- mbrutsch 11y ago
  http://www.whoishostingthis.com/blog/2015/05/20/snowdens-global-impact/ http://www.whoishostingthis.com/blog/2015/05/20/snowdens-glo...
  - happyscrappy 11y ago
    Apple in China is not a good example for obvious reasons and yes Russia may one day make their own chips. Probably the closest is Cisco in China.

chinathrow 11y ago

Some background: https://en.wikipedia.org/wiki/Nicholas_Merrill https://en.wikipedia.org/wiki/Nicholas_Merrill

fnordfnordfnord 11y ago
Thank you to Nicholas Merrill. edit: added to
- chinathrow 11y ago
  No, I'm not that guy - I had to google the case myself and thought others would need to as well.

calgoo 11y ago

A question regarding the appeal process: So if he releases the information before the government reaches the appeal court, is that illegal? Is there normally something that says "You have X time to bring this the the appeal court, if not you loose the right?"

rayiner 11y ago
In general, a district court's order is effective immediately, regardless of whether the other party intends to appeal. In a case like this where the activity at issue cannot be "undone" the district court may specify the order to become effective at some point in the future, as here: > The Court’s order will go into effect in 90 days. Mr. Merrill will remain gagged for that period, in order to allow the government time to decide whether to appeal the decision. The government has 60 days to file an appeal. But even filing the appeal won't by itself prevent the district court's order from going into effect. It'll have to file a motion for stay, and the appellate court will have to decide to keep the district court order from going into effect pending appeal. The decision of that motion will be an early look into what the appellate court is thinking. The standard for granting a stay requires the appellate court to conclude that the appellant (here, the government) has a likelihood of succeeding on the merits of the appeal.
- calgoo 11y ago
  Thanks! Just what I wanted to know. Must have missed that part from the article regarding the 90 Days.

lakeeffect 11y ago

What happens if you violate one of these orders?

digler999 11y ago
And what happens if you deliberately avoid any attempts by them to contact you ? Don't answer the door, don't acknowledge them, dont sign anything, etc. How can you enter into an agreement you haven't even acknowledged ?