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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

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

    by fuzzyfuzzyfungus (1223518) on Friday July 20, 2012 @10:15AM (#40711635) Journal

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

  • Lawful my ass (Score:5, Interesting)

    by mr1911 (1942298) on Friday July 20, 2012 @10:16AM (#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.

  • by Mabhatter (126906) on Friday July 20, 2012 @10:21AM (#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.

  • by Baloroth (2370816) on Friday July 20, 2012 @10:48AM (#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.

  • Doublethink (Score:2, Interesting)

    by Anonymous Coward on Friday July 20, 2012 @10:49AM (#40712179)

    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] with the United States' vindication of its sovereign interests in law enforcement, counterintelligence, and protecting national security." "

    Ironically, I'm reading 1984 right now. Sounds to me like doublethink. You have the right to challenge the NSL's legality but you have no right to challenge the NSL's legality.

    "Freedom is slavery, slavery is freedom."

  • by guibaby (192136) on Friday July 20, 2012 @11:08AM (#40712447)

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

  • by tibman (623933) on Friday July 20, 2012 @11:50AM (#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.

  • by Zinho (17895) on Friday July 20, 2012 @12:17PM (#40713685) Journal

    I read through a couple of the documents (first and last), and it seems that the FBI lawyers either don't get it or are being intentionally evasive about the issues. Their first-amendment counter-arguments, though, seem to boil down to the following:

    * The phone records aren't protected by the first amendment because the parties that want to talk are in a business relationship.
    * This censorship isn't harming the company or the subscriber because even if the NSL were public the company wouldn't lose any customers over it. The FBI is sending these letters to everyone, and everyone else is complying, so it's not like the customer can switch providers to get away from it.
    * The FBI is interested in the call logs to see who the subscriber is associating with, but this isn't 1960's Alabama, and the customer isn't a member of the NAACP with KKK looking to burn crosses on their lawn as soon as the membership list goes public - the EFF hasn't shown that a specific harm will come to the phone company or the customer as a result of providing the information requested or keeping quiet about it being provided.

    The "doesn't get it" part is that the FBI seems intent on ignoring the gag order parts of the NSL in favor of arguing "we totally have a right to that information, and you have no right to keep it from us". It's just amazing, though, that they're able with wide-eyed innocence to ask "what's the harm?" to the judge, as if they were not actively looking to deprive someone of their liberty or life based on associations they'd discover with this request. I guess in their mind that it's OK because it's the FBI instead of the KKK that's doing it - national security and all that. Oh, and the "we're harming everyone the same way, so this specific instance is OK" stance is mind-boggling, too.

    Perhaps there's other documents I haven't read that deal with that separately; the most recent filing was a request to compel compliance. I'm sure I'm missing lost of fun details, and that someone with more legal experience could poke more holes in this; it's cases like these that need a running commentary by someone like PJ from Groklaw...

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