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Federal Judge Finds National Security Letters Unconstitutional, Bans Them
- koenigdavidmj 14y agoIf this was stayed to allow it to go to the circuit appeals court, does it only apply in the Ninth Circuit?
- hsmyers 14y agoNot a lawyer, but I'd say yes.
- deleted 14y ago[deleted]
- ChuckMcM 14y agoYes, but hey once the Ninth Circuit throws it out Google and others might be able to plausibly claim[1] they are no longer bound by the gag orders. If it does get by the Ninth circuit then it will go to the Supreme court. Sadly the Supreme Court has been a bit to pro-government to my tastes lately. [1] Google claims their headquarters are in California, they also move all disputes into California, and so they could claim for the purposes of this statute they are a California company, even though their Incorporation papers are in Delaware I believe. Not a lawyer so can't advise but it is my best guess as to how they would position it.
- Zimahl 14y agoSadly the Supreme Court has been a bit to pro-government to my tastes lately. I'd have to disagree. We've seen GPS tracking thrown out and other curbs on invasions of privacy. This court seems very interested in broadly defining privacy.
- rosser 14y agoConcur. As little as I'd have expected to be able to say this when some of the more recent sitting justices were appointed, I think this may be one of the best SCOTUS in recent memory to have such a case appear before them.
- defen 14y agoIANAL but IIRC the GPS tracking was thrown out on narrow technical grounds - without a warrant the cops can't trespass upon your vehicle to install the tracker. They didn't say there was anything inherently wrong with the tracking itself. In other words, it would be just as illegal for the cops to surreptitiously attach an inert brick to your car without a warrant.
- rayiner 14y agoThat's not a narrow technical ground. Requiring involvement of the judiciary versus not requiring it is a huge distinction.
- defen 14y agoTo clarify - they (in my recollection) didn't say anything about the appropriateness of automated monitoring of people's movements in public places. It's already ok for the cops to tail you without a warrant. But automated vehicle-tracking via drones without a warrant (for example) is still up in the air. No pun intended. It wasn't really a ruling in favor of (or against) privacy.
- eurleif 14y agoSeems to me like drones should be treated the same as thermal imaging cameras, which the Supreme Court ruled required a warrant (http://en.wikipedia.org/wiki/Kyllo_v._United_States http://en.wikipedia.org/wiki/Kyllo_v._United_States) because they're not in use by the general public, and thus there's a reasonable expectation of privacy. But it was a 5-4 decision, and I guess drones might come into use by the general public, so who knows.
- chrisbolt 14y agoWhich brings up the quesion... would it be legal if GPS tracking devices were embedded into government issued license plates?
- rayiner 14y agoIf the 9th circuit upheld, then it would be binding in the 9th circuit, but persuasive in the other circuits if challenged on those grounds elsewhere.
- mtgx 14y agoSo then we should hope this goes to the Supreme Court so it can be upheld there and applied everywhere? Or will most smaller courts apply it in other districts anyway, if the 9th Circuit upholds it?
- rayiner 14y agoIt really depends. For politically controversial stuff like this, lower courts ten to be skeptical of out-of-Circuit decisions, especially out of the 9th, which has a reputation for being lala-land. If it were something mundane, or the circuit was say the 2nd rather than the 9th, then district courts elsewhere would probably consider the decision fairly persuasive, absent a contrary decision in their own circuit. But with something like this, who knows? Ideally what would happen is for the case to be appealed, for the 9th circuit to uphold, then for a different circuit to come out the other way so the argument can be made that the Supreme Court needs to resolve the circuit split. That's one typical way controversial things like this make their way up to the Supreme Court.
- gknoy 14y ago> Ideally... the 9th circuit [upholds], then ... a different circuit to come out the other way so ... the Supreme Court needs to resolve the circuit split. I think that is the likely outcome, but I think an ideal one would be one where more than one circuit court affirm this standpoint, and the others follow suit. Wouldn't it then no longer need to go to the Supreme Court?
- trotsky 14y agoThe ninth alone might prove rather interesting given the number of non-traditional communications providers operating there.
- deleted 14y ago[deleted]
- mmastrac 14y agoThis part is a big WTF: "After the telecom challenged the NSL, the Justice Department took its own extraordinary measure and sued the company, arguing in court documents that the company was violating the law by challenging its authority."
- dreamdu5t 14y agoThat's incredibly alarming. This is Obama's justice department too, headed by people he personally appointed.
- KoulMomo 14y agoObama's justice department has been just as horrible, if not more-so than Bush's justice department.
- Shivetya 14y agoThe real tragedy is the free pass the press gives him, if Bush had pulled this, the drone hits, fast and furious, and more, we would have at least had the press on our side. I can, but don't have to accept, members of his own party turning a blind eye, I will never accept a press which has.
- Cushman 14y agoI don't see it. Bush started a literal war of aggression with press support; we're supposed to expect them to get up in arms over a few assassinations?
- anigbrowl 14y agohttp://en.wikipedia.org/wiki/Drone_attacks_in_Pakistan#Statistics http://en.wikipedia.org/wiki/Drone_attacks_in_Pakistan#Stati... http://en.wikipedia.org/wiki/ATF_gunwalking_scandal#2006.E2.80.932008:_Operation_Wide_Receiver_and_other_probes http://en.wikipedia.org/wiki/ATF_gunwalking_scandal#2006.E2.... Note the dates. In fairness to the press, it's not surprising that the firs 5 years of drone strikes received little press coverage, because we had become involved in a much larger war in Iraq. I'm somewhat tolerant of drone strikes; all told they seem to have killed about 3,200 people at the highest estimate, which sounds bad until you consider lowest estimate for the Iraq war is 110,000 deaths, of which over half are civilians. The median estimate is about double that. Drones are sort of scary for a variety of reasons, but there is at least some basis for fighting that conflict (directly responsive to 9-1--2001 attacks) and the casualties from done warfare are a fraction of those from conventional warfare, by about 2 orders of magnitude.
- jasonkolb 14y agoThis is so awesome. Sometimes it feels like we're barreling towards a monarchy with the executive branch wearing the crown. It made my afternoon to see that there still are operational checks and balances still functioning. I would love to see the judiciary start to rein in the executive branch.
- Osiris 14y agoOne of the main points of the U.S. constitution is to provide checks and balances so that one branch of government cannot ac t unilaterally without oversight. For the executive branch to argue that in this case there is no way to challenge it is disingenuous at best and at worst, as this judge pointed out, unconstitutional. It's frustrating to me as a citizen that if a government agency decides it has a problem with me, I'm pretty much screwed unless I have plenty of cash to hire the best lawyers.
- coopdog 14y agoOr the EFF, it's almost like little guy insurance
- lambda 14y agoYep. Donate to the EFF regularly. With all luck, you won't need their services; but in the rare case that you do, it's much better to have them still be around and well funded.
- anigbrowl 14y agoRealistically, you are just as screwed if any large organization launches a civil suit against you. Congress frequently produces laws that attempt to mandate the behavior of the Executive branch* while excluding that behavior from judicial review (which courts do not take kindly to and frequently dismiss). A lot of legislators do not like the Judicial branch and consider it to be an annoying restraint on their lawmaking power; what looks like tension between the Executive and Judicial branches is often as not a proxy for Legislative claims. Whenever you see a piece of legislation with phraseology like '[officer of some executive branch agency] shall do x, y, z, in the following fashion...' pay attention to the word shall. In law this is understood to make the action mandatory, and where the law is very specific on procedures and actions it's basically an attempt to micromanage the operation of the agency in question. Consider the following imaginary law: If any person wears white after Labor Day, the head of the Fashion Police shall cause that person to be arrested and fined $1,000. This procedure shall not be subject to judicial review. Now if you're the Fashionista-general, you have no choice but to arrest people wearing white after Labor Day [for non-Americans, wearing white after late September is jokingly regarded as an offense against good taste]. Failure to do so clearly violates the oath of office required of office-holders in the Executive branch. And the same law says that you don't get to complain about this in court, so judges are supposed to dismiss your case without even giving it a hearing. That will make people mad with the Fashion Police and frustrated with the Courts, even though the blame for this law lies with the Legislature. Here's an example of a real law that operates this way, from a current immigration statute: http://www.law.cornell.edu/uscode/text/8/1252 http://www.law.cornell.edu/uscode/text/8/1252 Note section (a)(2)(A)(i): the law applies to people who receive orders of removal, aka deportation orders (a); it's explicitly not subject to judicial review (2)(A); and the procedures for dealing with individual cases are very narrowly specified in the section linked to from clause (i), with a lot of detail specifying how people shall be categorized and treated.
- rayiner 14y agoGreat work by the EFF here. There is a delicate balance between the power of the executive and the power of the courts and trying to chill the telecom's access to the court system by claiming that the company was interfering with an investigation by challenging the NSL is a deeply troubling action. Abuses can be fixed, but not if they can't be challenged in court.
- mrich 14y agoKudos also to the unnamed telecom company that went out of their way to fight this, and the EFF for fighting the good fight. Don't forget to donate to them.
- fnordfnordfnord 14y agoCredo mobile, it's in the article.
- macchina 14y agoYeah, Credo is sort of a bizarre little company. They created a Super PAC to oppose tea party candidates and to support public financing of campaigns, i.e., outlawing Super PACs (they were a total anomaly in this regard). In 2011, they received one of those so called "national security letters" and just completely stonewalled the FBI. Thank god for this one activist mobile carrier or this case would've probably never happened.
- pinko 14y agoCredo is the latest incarnation of the old Working Assets long-distance firm, if you're old enough to remember them and that helps explain their politics.
- Snoptic 14y agoWow,nice! Just saw their website. Impressed by the progressive values, saddened by the partisan politicking ('fight the right', WTF?
- sp332 14y agoAnyone know which telco this really was?
- Scramblejams 14y agoIt's in the article.
- nmcfarl 14y agoThe article says it’s likely Credo Mobile. They're a fairly great little MVNO out of San Francisco. My wife, who is a customer, loves their customer service. And they’ve spoken out against the Patriot act - here’s tweet of theirs on the subject: https://twitter.com/CREDOMobile/status/4326145876 https://twitter.com/CREDOMobile/status/4326145876
- fnordfnordfnord 14y agoFuckin' A, man! Please forgive me for that outburst. But this really puts a smile on my face. I think I'll go give more money to the EFF. Maybe rename my daughter Susan.
- tatsuke95 14y ago>Maybe rename my daughter Susan. Or just have another daughter...or son?
- fnordfnordfnord 14y agoMaybe so, but if I had another son, I could never name him Sue. http://www.youtube.com/watch?v=-1BJfDvSITY http://www.youtube.com/watch?v=-1BJfDvSITY
- csense 14y agoThere's a lot of grousing in the tech community -- and HN in particular -- about all the threats to freedom, and for all the problems with the government's responses to current issues like new technologies or terrorism. There's legitimate substance here, but occasionally, the system actually works exactly the way it's supposed to -- the judicial branch both asserting its independence from the executive and striking down an overreaching action by the latter. In the actual ruling [1], the judge provides a very apt quotation from another case: "Under no circumstances should the Judiciary become the handmaiden of the Executive." This is particularly important in matters of national security. The tendency is for the executive branch to say the magic words "national security" if those words tend to cause other people to let them do whatever they want. EDIT: Actually link to the ruling [1] https://www.eff.org/document/nsl-ruling-march-14-2013 https://www.eff.org/document/nsl-ruling-march-14-2013
- MartinCron 14y agothe system actually works exactly the way it's supposed to The system actually works exactly the way it's supposed to far more often than the cynics like to admit. The system isn't perfect, but I'm not about to stop believing in justice just yet.
- rayiner 14y agoI've always found reading Hamdi v. Rumsfeld to be soothing when I'm feeling cynical: http://scholar.google.com/scholar_case?case=6173897153146757813&q=hamdi+v+rumsfeld&hl=en&as_sdt=2,33 http://scholar.google.com/scholar_case?case=6173897153146757.... This is just a few years after 9/11, a year into the Iraq war, and Scalia, joined by Stevens, dissenting because the majority didn't go far enough in protecting an accused terrorist from the Bush administration: "Having distorted the Suspension Clause, the plurality finishes up by transmogrifying the Great Writ—disposing of the present habeas petition by remanding for the District Court to "engag[e] in a factfinding process that is both prudent and incremental," ante, at 539. "In the absence of [the Executive's prior provision of procedures that satisfy due process], ... a court that receives a petition for a writ of habeas corpus from an alleged enemy combatant must itself ensure that the minimum requirements of due process are achieved." Ante, at 538. This judicial remediation of executive default is unheard of. The role of habeas corpus is to determine the legality of executive detention, not to supply the omitted process necessary to make it legal. See Preiser v. Rodriguez, 411 U.S. 475, 484 (1973) ("[T]he essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and ... the traditional function of the writ is to secure release from illegal custody"); 1 Blackstone 132-133. It is not the habeas court's function to make illegal detention legal by supplying a process that the Government could have provided, but chose not to. If Hamdi is being imprisoned in violation of the Constitution (because without due process of law), then his habeas petition should be granted; the Executive may then hand him over to the criminal authorities, whose detention for the purpose of prosecution will be lawful, or else must release him." His whole dissent, starting at 554, is worth a read.
- graycat 14y agoAs at http://wiki.monticello.org/mediawiki/index.php/Eternal_vigilance_is_the_price_of_liberty_%28Quotation%29 http://wiki.monticello.org/mediawiki/index.php/Eternal_vigil... attributed to Jefferson is "The price of liberty is eternal vigilance." So, US citizens need to resist the excesses of big gumment and, moreover, as good news, can do so with a simple letter to their Congressman and Senators, if enough citizens do that. E.g., it was good to see SOPA/PIPA go down for the count after one punch from a flurry of publicity and letters to Congress. I wrote all three of my guys here in NY. One way to get more such needed letters is more information on the Internet as here on HN. While the EFF seems to do a lot of really good work, the legal system is slow while a few 18 wheel trucks of letters to Congress can get action as quickly as Congress can act which means in less than 24 hours. Two-thirds of the House; two-thirds of the Senate; do not pass the White House, do not collect the president's signature; done. We actually do live in a quite responsive democracy; when enough citizens shout "frog" Congress jumps; and Congress has the lion's share of the power. For the power of more information, as at http://www.nysscpa.org/cpajournal/2003/1203/nv/nv2.htm http://www.nysscpa.org/cpajournal/2003/1203/nv/nv2.htm "'Sunlight is the best disinfectant,'” a well-known quote from U.S. Supreme Court Justice Louis Brandeis". The NSL situation was so obviously unconstitutional that I have to believe that the W efforts to push through that and similar stuff after 9/11 were understood at the time to be unconstitutional but to give a window, until cases were brought and the courts acted, to permit defending against anymore 9/11s. Hopefully the FBI and the DoJ didn't do too much damage to honest US citizens and did round up lots of wacko Jihaders dreaming of a harem of 72 virgins or whatever.
- lsiebert 14y agoThis ban is stayed so the 9th Circuit of Appeals can consider it.
- bilbo0s 14y agoEFF just earned themselves a big bonus from me this year. This is exactly what the nation needs. We should be pushing back against government overreach where fundamental freedoms are concerned.
- rsync 14y agoThis will open up our Monday morning schedule nicely if we no longer have to maintain: http://www.rsync.net/resources/notices/canary.txt http://www.rsync.net/resources/notices/canary.txt It would be our great pleasure :)
- bashinator 14y agoWouldn't this just be considered premeditated intent to violate the NSL gag orders?
- noonespecial 14y agoI think it works like this. They are not permitted to tell you that they have been served a warrant, but they are always free to tell you that they haven't. If they should suddenly stop doing so, its up to you to draw your own conclusions as to why. That seems reasonable, even in the context of the madness of federal law. As the text file says however, its always possible that they are being coerced to lie and continue to say that they haven't when they have.
- InclinedPlane 14y agoThey could physically destroy all copies of the private key they use if they are served a gag order, making it impossible for them to be coerced into maintaining the canary.
- rdtsc 14y agoIsn't it really about how this "law" is written. Stopping posting negative notifications is equivalent to "notifying the suspect". In the end they can wrap it up in a black box and say "we don't care what mechanism you used, we told you not to notify the suspect and you did, this a violation of this law, whether it was done via posting or refusing to continue post-ing something to a website it doesn't really matter".
- tlrobinson 14y agoI'm curious where the line is drawn. What if they had a different file for every user? What if one were to setup an independent site that reported the presence/absence of these files on 3rd party sites, but explicitly pointed out that the absence of the file, given the history of it's presence, meant there was a high probability that a NSL was served to a specific site, for a specific user...
- will_brown 14y agoThis is definitely a victory and kudos to the EFF, but keep this win in perspective. The Court only ruled on the gag orders attached to the NSLs. Therefore, as of now the executive can still issue an NSL, without a gag order attached, which is still the equivalent of a warrant less search and seizure. So there is still a larger fight ahead in getting the Courts to rule the NSLs are Unconstitutional.
- r00fus 14y agoDon't just give them kudos. Send the EFF dollars.
- will_brown 14y agoI have done more than send money to the EFF, I applied to be an attorney for the EFF and when that did not pan out I contacted them to volunteer my legal services pro-bono. I don't see eye to eye with the EFF on all issues, but when they sued AT&T in 2006 I saw the potential ACLU of technology.
- mey 14y agoPlease read the EFF's press release closely. Specifically 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. There is are two separate issues, overstepping of executive authority and free speech, all aspects of NSL are being declared. Not just the gag section. Now there is a 90 day window for appeal, and I would expect the DoJ to appeal.
- will_brown 14y ago>Please read the EFF's press release closely. Specifically Thanks, I read the Court opinion. Though I think you need to read my comment more specifically. There is nothing inconsistent with my comment and your comment, I think you just got hung up on the Court declaring the entire NSL law unconstitutional and I reference NSLs being sent in the future without gag-orders. You are correct there were two issues in the case, but the second issue "the judicial review provision" was only related to the NSL nondisclosure provision. See Page 1 paragraphs 20-22 of the Court Order (issue one and two "collectively refered to as 'NSL nondisclosure provisions). Therefore, Congress can reauthorize NSL without gag-orders, and they will bc that is what Congress does when a new law is struck down they rewrite it to comply with the Court ruling. Then the NSL without gag-order will be challenged again and this time not under the 1st Amendment like the non-disclosure provisions but under the 4th Amendment.
- geoffc 14y agoThe judge is an America hero. The NSL's are Orwellian. I just donated to the EFF, please do likewise.
- mpyne 14y agoTwo thumbs up to the EFF on this one! I just hope it holds up at the Supreme Court level and we can start restoring the checks and balances of our republic.
- marze 14y agoGiven the lack of seriously dangerous threats to the usa we've heard about (and I assume we'd hear), I can't believe that just letting someone discuss a request for information they receive would be cause any real danger.
- InclinedPlane 14y agoTo be fair there have been some seriously dangerous threats that have been forestalled by government action. Unfortunately though there is a widespread pattern of many of these folks effectively being entrapped by the government, but there are a handful of legitimate threats even so.
- unclebucknasty 14y agoIt shouldn't feel like a victory that the DOJ didn't prevail here. Instead, it should feel like a loss that we are even having to argue this. NSLs are flagrantly unconstitutional warrantless searches. How far gone we are since 9/11. We gave up so many rights in virtually one fell swoop, and now we are having to claw and fight to try to win back some of our most basic protections and freedoms. It's so bad that we win back a mere semblance of a basic right that should be ours by the Constitution, and we feel like we won the lottery. I was pretty excited myself until I had that realization. Not to be a party-pooper.
- iamdave 14y agoQuestion: Does this mean NSLs are now subject to FOIA requests?