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Electronic Frontier Foundation Government Privacy Security Your Rights Online

EFF Challenges National Security Letter 153

Posted by Soulskill from the letter-of-the-law dept.
sunbird writes "The Electronic Frontier Foundation filed a lawsuit in the United States District Court in San Francisco on behalf of an anonymous petitioner seeking to challenge a National Security Letter (NSL) the petitioner had received. NSLs are issued by law enforcement with neither judicial oversight nor probable cause, and have been discussed on Slashdot before. In response to the lawsuit, the U.S. Department of Justice filed a separate lawsuit against the individual who had received the NSL, requesting that the court order the recipient to comply with the NSL and asking the court to find that the 'failure to comply with a lawfully issued National Security Letter interferes with the United States' vindication of its sovereign interests in law enforcement, counterintelligence, and protecting national security.' Both cases are filed under seal, but heavily-redacted filings are available. The cases remain pending."
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EFF Challenges National Security Letter More

EFF Challenges National Security Letter

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  • God Bless America! (Score:5, Interesting)

    by fuzzyfuzzyfungus ( 1223518 ) on Friday July 20, 2012 @09:15AM (#40711635) Journal

    We've managed to reinvent the Lettre de cachet [wikipedia.org]!

    • Re:God Bless America! (Score:5, Insightful)

      by Yvanhoe ( 564877 ) on Friday July 20, 2012 @09:28AM (#40711861) Journal
      From France, I wish you a happy revolution.

      • Re:God Bless America! (Score:4, Funny)

        by Anonymous Coward on Friday July 20, 2012 @09:40AM (#40712041)

        From France, I wish you a happy revolution.

        Care to help again?

        • Re:God Bless America! (Score:5, Funny)

          by GameboyRMH ( 1153867 ) <gameboyrmh.gmail@com> on Friday July 20, 2012 @10:05AM (#40712399) Journal

          Promise you won't make jokes about them afterwards this time and maybe they'll agree.

        • Re: (Score:3, Insightful)

          by Anonymous Coward

          The sad fact is, few Americans realize that had France not helped, the US very likely would not exist today.

          Comically, the US' existance is France's middle Finger to England.

          • Re: (Score:2)

            by Krojack ( 575051 )
            True however we saved them two times. So I think we're one up on them. =)
            • Not the same France. The one the helped the USA was before the revolution. The one your talking about beheaded all the ones that helped save the USA.

            • Re: (Score:2)

              by serbanp ( 139486 )

              Hey,

              I've seen this "we saved them two times" being spouted a lot regarding US helping France in a war context.

              Yes, WWII is clearly a situation in which US, along with USSR, bore most of the war effort on the Allied side.

              But WWI? Come on! US contribution to that ugly war was at best minor and had little to do with that war's outcome. It actually helped more the US Army than its allies, as they finally figured out how utterly unprepared they were for a large-scale "modern" conflict; between the (un)Civil War

              • Re: (Score:2)

                by zlives ( 2009072 )

                technically we didn't save their ass in ww2, since their ass was already grass by the time we saved England's ass.
                they benefited from the Britain ass saving/German ass spanking.

          • "If we weren't there, you'd all be speaking German now."

            "And if not for us, you'd still be drinking tea."

            • "And if not for us, you'd still be drinking tea."

              That's not the worst of it: they'd be watching ice hockey instead of football, too!

        • My first reaction: We don't need any steenking outside help to kick ass, and tear shit up.

          My second reaction is probably more realistic: Americans are such docile sheep, we probably need some outside help to work up the nerve to protest anything.

          • Re:God Bless America! (Score:4, Interesting)

            by tibman ( 623933 ) on Friday July 20, 2012 @10:50AM (#40713193) Homepage

            I've seen all kinds of American protestors but they are generally looked down upon. The masses tell them they are protesting wrong or that they aren't sanitary enough.

          • Americans are docile because they have easy access to cheap high-calorie food, cheap entertainment and cheap antidepressant psychotropics at the local drugstore or Vitamin Shoppe (i.e. St. John's Wort, SAM-E, Holy Basil) as well as cheap energy for heating and cooling. When this is no longer the case, a hot/cold, hungry, un-entertained, hungover populace will lose that docility with extraordinary speed.

            All of the aforementioned is possible due to cheap energy and a functioning financial system. What could g

            • Re: (Score:3)

              by egamma ( 572162 )

              What could go wrong? http://www.tumblr.com/tagged/large+government+ammo+purchase [tumblr.com]

              The says that they can purchase "up to" 450 million rounds over 5 years. They could also purchase 500 rounds under that contract. The ammo manufacturer wanted a CYA limitation on the number of rounds they could be asked to provide, so that the government couldn't sue them for breach of contract if the government asked them to provide a billion rounds and the manufacturer was unable to fulfill the order.

              Occam's razor. Sometime's a contract is just a contract.

              • Interesting, and thanks for pointing that out. I wonder if it's possible to find out what was actually purchased?

                • Re: (Score:2)

                  by egamma ( 572162 )

                  Interesting, and thanks for pointing that out. I wonder if it's possible to find out what was actually purchased?

                  You would have to make a FOIA request to DHS, i think.

              • I have about 10k rounds of ammo of various calibers at home, most of that purchased in bulk. It doesn't mean that I actually need that much ammo all in one go, but it lets me spend as much as I want on every range session for quite a long time, and it's cheaper to purchase this kind of thing in bulk. And I go to range about once per week.

                How many armed officers does DHS have? I would imagine that it's several thousand, at least (IIRC, the total headcount was something like 60k in 2010). And I'd hope that th

                • When I was at school (in the UK), I'd get through 20-60 rounds a week on the range. Only during term time, so probably about 1-2K/year. This was mostly bolt-action target rifle ammunition, in a scenario where accuracy is the most important and speed is not a concern. When firing things like assault rifles and lever-action carbines I could easily shoot 5-10 times as much ammunition in the same amount of time. If someone has a job where being able to shoot both quickly and accurately is a requirement, I'd

      • Re: (Score:2)

        by Sloppy ( 14984 )

        Thank you, mon ami. I'll have you know that last weekend, we celebrated Bastille Day by eating French Toast in the morning, French Fries for lunch, and French Dip roast beef sandwiches on a French Bread baguette for dinner. There was also a snack where we ate fancy crackers with cheese on them, while drinking wine (local, though, not imported from France) while watching a cheesy movie (Star Trek First Contract, which features an alt.french.captain.borg.borg.borg).

        Yes, really. It happened.

        • Re:God Bless America! (Score:4, Funny)

          by GNious ( 953874 ) on Friday July 20, 2012 @10:52AM (#40713225)

          Thank you, mon ami. I'll have you know that last weekend, we celebrated Bastille Day by eating French Toast.

          Thought that was from Germany

          French Fries

          Those are dutch-belgian..

          French Dip roast beef sandwiches

          ...invented in Los Angeles

          French Bread baguette

          That just seems redundant!

          But you got pretty close, so points for now being Canadian!

        • Re: (Score:2)

          by tsm_sf ( 545316 )
          And to drink, Peru!

    • Re:God Bless America! (Score:5, Interesting)

      by Baloroth ( 2370816 ) on Friday July 20, 2012 @09:48AM (#40712167)

      The main difference being NSLs are pretty much not legally enforceable and have, in fact, been ruled against by courts in the US in the past as unconstitutional. Basically, they only "force" they bear is that companies haven't really protested against them, for the most part, finding it easier to simply hand over the information. Also, they can only request partial, non-content records (e.g. "party A dialed party B"). Still probably illegal, but less so.

      • That makes no sense. Even the example given, "party A dialed party B" *is* content. If they have to get information from you, that is content, isn't it?

        Also, how is something "less illegal" - I mean, something is pretty much either legal or illegal. I don't see how there's exactly degrees of legality?

        • See misdemeanor and felony

        • That makes no sense. Even the example given, "party A dialed party B" *is* content. If they have to get information from you, that is content, isn't it?

          Baloroth is distinguishing between a request for data about a communication and the content of the communication itself. The law distringuishes between to two. For example, a warant might authorize the police to attach a "pen recorder" to someone's phone line to see what numbers he dials but not authorize the police to listen in on the conversations.

          • Re: (Score:2)

            by Archfeld ( 6757 ) *

            Well said. Establishing that such communications existed allows the law enforcement folks to bootstrap into a full blown search warrant.

        • Also, how is something "less illegal" - I mean, something is pretty much either legal or illegal. I don't see how there's exactly degrees of legality?

          Obviously you're not a lawyer. The best way I've heard it put is that "Most people think of the law as a hard line in the sand. In reality it is more like a rope loosely staked to the ground - there are a few points where the meaning is certain, but a great deal of flexibility between them."

      • The main difference being NSLs are pretty much not legally enforceable and have, in fact, been ruled against by courts in the US in the past as unconstitutional.

        The kicker from my understanding is concept of "third party doctrine" where assertion of 4th amendment protections don't apply when your information is held by someone else.

        The net effect as far as I've been able to parse NSLs are just blatently unconstititutional red herrings. They are allowed to persist simply because the third party doctrine wields all the real power.

    • Can I supersize that Lettre de Cachet into a Star Chamber [wikipedia.org] ...?

  • Lawful my ass (Score:5, Interesting)

    by mr1911 ( 1942298 ) on Friday July 20, 2012 @09:16AM (#40711653)

    Department of Justice filed a separate lawsuit against the individual who had received the NSL, requesting that the court order the recipient to comply with the NSL and asking the court to find that the 'failure to comply with a lawfully issued National Security Letter interferes with the United States' vindication of its sovereign interests in law enforcement, counterintelligence, and protecting national security.'

    NSLs are issued by law enforcement with neither judicial oversight nor probable cause

    Time for the supreme court to strike NSLs down.

    • Sure that is until Congress uses their powers to limit the Supreme Court's appellate jurisdiction to even hear the case since this would not fall under the Supreme Court's original jurisdiction.

      • The Congress can do no such thing. The Supreme Court's juris diction includes all cases, per the constitution.

        • Hahaha you're so wrong it's not even funny. I suggest you look up 'jurisdiction stripping' and read the Exceptions clause of the Constitution (article 3 section 2).

      • Re: (Score:2)

        by swb ( 14022 )

        It would seem that the Supreme Court would have nearly infinite latitude to rule that some subject X is in fact a Bill of Rights issue and void any congressional attempts to limit its powers.

        I took a political science course my senior year in college regarding the Supreme Court and the takeaway on limiting the court's powers seemed to be largely restricted to "packing" the court by raising the number of justices and then appointing friendly justices to the new slots until you had a solid majority.

        • Bill of Rights issues aren't part of its original jurisdiction. You've just made something up that has no Constitutional basis.

          • a number of amendments are of the form "section X paragraph Y shall be changed to read...." since they are to be considered Patches to the Constitution. So Yes the SCOTUS does rule on the Bill of Rights. (trying to stick an unneeded "original" in does nothing since the SCOTUS must rule on the Constitution AS CURRENTLY AMENDED.

            • You're misinterpreting the word "original". Original Jurisdiction means the course goes straight to them, rather than being referred on appeal from lower courts. SCOTUS' original jurisdiction is absolute, but their appellate jurisdiction can theoretically be revoked by an Act of Congress.
          • Actually, that's what has been done in the past. [wikipedia.org] But it's going to take the help from Congress; and currently, I don't see the President getting that, yet.
          • The Supreme Court as the final arbiter of whether or not a law is Constitutional has not Constitutional basis. An early Supreme Court ruled that it had such power and everyone since has accepted that such was the case. The defendant in the case where the Court gave itself that power was none other than James Madison considered the "Father of the Constitution" (for legitimate reasons). It would be interesting to know what he would have felt about this ruling if it had not led to the Court finding in favor of

    • The Court will just rule that NSLs are people, who just happen to have grown valid Federal warrants for their situation within their stomachs. (That last part is important because the US, on behalf of these new People, can just say they have a medical condition that prevents them from producing the warrants, or that they ate them.)

    • Time for the supreme court to strike NSLs down.

      You apparently haven't seen some of the Supreme Court's latest rulings. Basically, they're using the Constitution as high-grade toilet paper. You can thank Bush for that. "Can the United States torture people with 6 feet of iron wrought fencing, heated, and no lube, because someone pitched a tent in a public place? Yes."

      • Re: (Score:2)

        by Hatta ( 162192 )

        You can thank Bush for that. "Can the United States torture people with 6 feet of iron wrought fencing, heated, and no lube, because someone pitched a tent in a public place? Yes."

        If Obama wanted to drop the strip search case, he had 4 years to do it. The violent oppression of Occupy took place completely under Obama's watch. Obama is more authoritarian than Bush ever was. Get over your crush and deal with reality.

  • Good thing the Court is in the USA (Score:4, Interesting)

    by Mabhatter ( 126906 ) on Friday July 20, 2012 @09:21AM (#40711731)

    Its a good thing this court is in the USA. It's like another part of the SAME GOVERNMENT.

    Courts don't take kindly to executive branch letters claiming the court cant be involved. My take is that this letter was petty enough, and not urgent, that the EFF thinks they have a shot at getting a judge to review it.

    • The NSL provisions were created by Congress. And Congress has the Constitutional authority to tell the courts to take a hike.

      • But not to tell the Constitution to take a hike, which is pretty much what the NSL provisions are.

        • Sure, but who's going to stop them? Not the Executive branch and the Supreme Court has no original jurisdiction in the matter so if it wanted to Congress can stop the courts from even hearing the cases.

          • Re: (Score:2)

            by AuMatar ( 183847 )

            No, they can't. The constitution gives the supreme court appellate jurisdiction over all cases. All Congress can do is add more layers.

            • No, it doesn't. Read article 3 Section 2 which explicitly states their original jurisdiction and how their appellate jurisdiction is subject to regulation by Congress.

              • Re:Good thing the Court is in the USA (Score:5, Interesting)

                by guibaby ( 192136 ) on Friday July 20, 2012 @10:08AM (#40712447)

                To your Article 3 Section 2 argument I raise you Marbury v. Madison.

              • Re: (Score:2)

                by AuMatar ( 183847 )

                " In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make."

                Congress has some ability to regulate how appeals must be done, but they CANNOT take away the supreme court's appellate jurisdiction. You're just wrong.

          • How is Congress going to do that? Perhaps there's some legal trick I'm unaware of, but I can't think of any way Congress could actually block a case from being filed in the courts (that seems profoundly unlawful in and of itself, not to mention the public shitstorm that it would raise).

            • Pass a law that limits the Supreme Court's appellate jurisdiction per their powers granted via Article 3 section 2. They've used this power previously such as during Reconstruction.

              • And the supreme court can rule that unlawful, congresses only recourse would be to impeach them and put in new members nominated by the executive branch. They have expanded there original jurisdiction before. This is not a game of brinkmanship any party wants to get into unless they have an overwhelming majority and the executive.

                • How is using a Constitutional power unlawful?

                  In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

                  Read the last sentence a couple of times until it sinks in. And, no, the Supreme Court has never expanded its original jurisdiction. You just made that up.

          • Sure, but who's going to stop them? Not the Executive branch and the Supreme Court has no original jurisdiction in the matter so if it wanted to Congress can stop the courts from even hearing the cases.

            Congress cannot stop a court from hearing a case (they can make a case moot by changing the provisions of a law that's being challenged, but that's a different issue). NSLs have been challenged before in the Doe v. Gonzalez and Doe v. Ashcroft cases, and have been found to violate the First and Fourth Amendments. Though the laws have been tweaked each time to get around the rulings, it shouldn't take many more before they get seriously struck down, possibly by the Supreme Court. And yes, the Supreme Cour

            • Addendum - after reading up on Jurisdiction Stripping, I admit I'm wrong. However, it takes a full act of Congress to declare something unreviewable, and good luck ever getting that past the current partisan gridlock.
              • Partisan gridlock is not the problem parties would like us to believe it is. On abortion, or gay marriage, or taxes sure. But they're always ready to work, hand in hand, to re-authorize the Patriot Act, throw money at the middle east, or commend efforts to promote and enhance public safety on the need for yellow corrugated stainless steel tubing bonding.

          • Re: (Score:2)

            by devjoe ( 88696 )
            Correct, the Supreme Court does not have original jurisdiction in the matter of the NSLs. This is why, if you read the heavily redacted documents about the case [eff.org] you will see, on the first page of each document, that this is being heard in US district court in California. If this gets appealed (and that seems likely to me regardless of the outcome), then the Supreme Court will get to hear it based on its appellate jurisdiction, which it has regarding all other cases, as quoted from the constitution by severa

      • And Congress has the Constitutional authority to tell the courts to take a hike.

        No, they don't. The courts have the Constitutional right to tell Congress to take a hike, though, if anything Congress does or enacts breaks the Constitution (that is a significant part of their job).

        • Yes they do. The inferior courts were created and vested with power by Congress. The Supreme Court also has no original jurisdiction n this matter and per Article 3 section 2 Congress can restrict the Supreme Courts apellate jurisdiction. Have you people even read the Constitution?

  • Resistance to tyranny is Fertilizer for liberty (Score:3)

    by cpu6502 ( 1960974 ) on Friday July 20, 2012 @09:27AM (#40711825)

    "failure to comply with a lawfully issued National Security Letter interferes with the United States' vindication of its sovereign interests in law enforcement, counterintelligence, and protecting national security."

    Vindication???
    That's an odd choice of words. Almost like revenge. (shrug). I would argue that the NSL violates the U.S. Constitution's requirement of a judge-issued search warrant, and an individual's right to be secure in his person, papers, and effects. Therefore the letter is null-and-void from the date of its creation. It is as if the letter never existed, because it has zero force of law.

    • It isn't the primary definition; but 'vindicate' can mean 'to assert/maintain/defend'.

      Could just be a curious choice, could also be that the Latin root 'vindicatus/vindicare' can mean 'to lay claim to' in a legal context...

  • No such thing (Score:5, Informative)

    by Hatta ( 162192 ) on Friday July 20, 2012 @09:31AM (#40711891) Journal

    No NSL is legally issued. They are searches without judicial oversight, and prior restraints on free speech. In violation of amendments 4 and 1. Anyone who made an oath to uphold the constitution would be breaking it if they enforced or issued a NSL in any way.

  • Doublethink (Score:2, Interesting)

    by Anonymous Coward

    from the article:
    "EFF brought its challenge on behalf of its client in May of 2011, raising these and other fundamental due process and First Amendment concerns about the structure of these problematic statutes. In response, the Department of Justice promptly filed a civil complaint against the recipient, alleging that by "stat[ing] its objection to compliance with the provisions of" the NSL by "exercis[ing] its rights under" the NSL statute to challenge the NSL's legality, the recipient was "interfer[ing]

  • time for the Supreme Court . . . (Score:4, Informative)

    by societyofrobots ( 1396043 ) on Friday July 20, 2012 @10:06AM (#40712411)

    The Fourth Amendment (Amendment IV) ... guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause:
    http://en.wikipedia.org/wiki/Fourth_Amendment_to_the_United_States_Constitution [wikipedia.org]

    The Fifth Amendment to the United States Constitution protects witnesses from being forced to incriminate themselves:
    http://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_States_Constitution [wikipedia.org]

    • The Supreme Court has been as thoroughly purchased as congress. Corporations are people. Money is speech. The court no longer serves the people any more than congress does.

      • The Supreme Court has been as thoroughly purchased as congress. Corporations are people. Money is speech. The court no longer serves the people any more than congress does.

        So, essentially what you're saying is that the soap box, ballot box, and jury box have all failed to protect liberty?

        Guess they aren't leaving us a lot of choice, are they? [wikipedia.org]



        On a seemingly (but not actually) unrelated note, it's been discovered that the bank HSBC has been laundering money for Mexican drug lords and Al Queda for quite some time now; How much would you be willing to bet that nobody goes to Gitmo, er, "jail" over this?

  • The 'NSL' is simply cops writing their own search warrants. Direct violation of the 4th Amendment.

    The relevant statute also violated the First Amendment because it is illegal for a 3rd party record holder (library, book store, etc,) to inform the individual that their records have been accessed.

    Hopefully it gets to the SCOTUS and the whole Patriot Act is ruled un-Constitutional.

  • Not completely anonymous (Score:3)

    by mapinguari ( 110030 ) on Friday July 20, 2012 @12:35PM (#40715123)
    In the Government's Reply in Support of Motion to Compel, it states that

    ... petitioner is a telephone company ...

  • Wired article (Score:3)

    by MobyDisk ( 75490 ) on Friday July 20, 2012 @02:08PM (#40716533) Homepage

    The Wired article [wired.com] claims that this is being challenged by a small telecom company called Credo.

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