Judge rules secret FBI letters unconstitutional

SAN FRANCISCO A federal judge has ruled that the FBI's practice of issuing so-called national security letters to banks, phone companies and other businesses is unconstitutional, saying the secretive demands for customer data violate the First Amendment.

The FBI almost always bars recipients of the letters from disclosing to anyone — including customers — that they have even received the demands, U.S. District Judge Susan Illston said in the ruling released Friday.

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," the San Francisco-based Illston wrote.

FBI counter-terrorism agents began issuing the letters, which don't require a judge's approval, after Congress passed the USA Patriot Act in the wake of the Sept. 11, 2001, attacks.

The case arises from a lawsuit that lawyers with the Electronic Frontier Foundation filed in 2011 on behalf of an unnamed telecommunications company that received an FBI demand for customer information.

"We are very pleased that the court recognized the fatal constitutional shortcomings of the NSL statute," EFF lawyer Matt Zimmerman said. "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."

Illston wrote that she was also troubled by the limited powers judges have to lift the gag orders.

Judges can eliminate the gag order only if they have "no reason to believe that disclosure may endanger the national security of the United States, interfere with a criminal counter-terrorism, or counterintelligence investigation, interfere with diplomatic relations, or endanger the life or physical safety of any person."

That provision also violated the Constitution because it blocks meaningful judicial review.

Illston ordered the FBI to cease issuing the letters, but put her order on hold for 90 days so the U.S. Department of Justice can appeal to the 9th U.S. Circuit Court of Appeals.

Illston isn't the first federal judge to find the letters troubling. The 2nd U.S. Circuit Court of Appeals in New York also found the gag order unconstitutional, but allowed the FBI to continue issuing them if it made changes to its system such as notifying recipients they can ask federal judges to review the letters.

Illston ruled Friday that it's up to Congress, and not the courts, to tinker with the letters.

In 2007, the Justice Department's inspector general found widespread violations in the FBI's use of the letters, including demands without proper authorization and information obtained in non-emergency circumstances. The FBI has tightened oversight of the system.

The FBI made 16,511 national security letter requests for information regarding 7,201 people in 2011, the latest data available. The FBI uses the letters to collect unlimited kinds of sensitive, private information like financial and phone records.

[AttyFAM]

Finally.

[webgone]

I dont see anything bad they do,
since they hide it from us.

[THGdriver2]

put her order on hold for 90 days so the U.S. Department of Justice can appeal to the 9th U.S. Circuit Court

I am sure Eric Holder will appeal this order. The other day he would not answer the simple question "can a president order the killing of a non aggressive American sitting in a cafe"? The answer is a simple NO. Holder tried his damnest not to answer the question.

[berlinfoto-2009]

What needs to be put before the court, is whether or not the FBI in and of it self constitutional.
The court need to in particular look at the practice of "KEEPING SECRETS" which is said to be the largest part of the work conducted by the FBI.
"KEEPING SECRETS" is nothing more than in reality, than harassing the living devil out of someone who knows about "GOVERNMENT WRONG DOING".
"HARASSING THE DEVIL OUT OF A POTENTIAL WHISTLE BLOWER". who potentially might help get the Government off it's current extremely sick path.

[raymailhot]

Leaving the politics aside, most Americans would like to really see the law as (un)constitutional and it needs to be brought before the top court. The other federal courts are so packed with a varying set of nuts we never know what these rulings mean. Some get overturn more than 50%, which is a good sign of legal malpractice.

[forumcomments]

Your right the law has seen fragments of it ruled unconstitutional only when they are brought up to higher courts. For example, when the FBI placed GPS tracking devices on vehicles without a warrant that was ruled unlawful by a higher court. http://abcnews.go.com/US/california-student-finds-fbi-tracking-device-car/story?id=11841644

The whole law should be brought reviewed by a higher court

[forumcomments]

Each time the unpatriotic act is up for renewal those who support it use scare tactics and rhetoric stating that they can't guarantee prevention of another attack without the law. We all know this is just rhetoric and they had the ability to gain needed timely information before 9-11. The unpatriotic act gives them unilateral authority with no oversight and little accountability or transparency. The law needs to be repealed and made constitutional.

[creeper00]

Wake up, sleepwalkers. This isn't about Democrats or Republicans. They're all self-centered dolts who are only interested in keeping their own positions and getting more of your money. Get rid of them. All of them. Start fresh. Pay attention to what the next crop does. If the one you elect in their place are just as crooked, get rid of them, too. Rinse, repeat.

[myopinion57]

After 9/11, America needed something like the Patriot Act for gathering information about terrorist cells in the USA. Those who perpetrated the acts on 9/11 had been living in the USA for some time, taking flying lessons, etc., etc. Some red flags were missed that might have prevented the 9/11 tragedy.

Yes, the Bush Administration likely overdid the scope of the Patriot Act but, to be honest and fair, we should all consider the emotions in force when the Act was crafted and passed.

Bush and Obama should have refined the provisions of the Patriot Act as they learned what worked and what didn't; what violated the Constitution and what didn't.

The fact that they didn't do that is the fault of those Presidents AND the members of their Administration closest to the use and enforcement of the Act. They should have had the moral courage to brief the Presidents about changes that needed to be made to conform to Constitutional protections.

That they didn't do that is an indictment of the paralysis in the national security bureaucracy.

[davidd5063]

The "Patriot Act" is the single most unconstitutional infringement on American's privacy implemented during my lifetime. It was passed by a majority GOP House and Senate and signed by a GOP President. Just more evidence that the GOP has a very narrow definition of "small govt". They only want SMALL on education, social services, and taxes. The GOP wants the authority to arrest and jail people indefinitly without trial and without even filing formal charges. GW and Cheney proved it when they trampled everyone's rights for 8 years and the SAME "small govt" loud-mouth hypocrites screaming today voted for GW TWICE!

[forumcomments]

I can't imagine that those who wrote the constitution meant for it to apply only when citizens challenge it. Why isn't the constitutionality of a law evaluated before the law is passed and used?