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Court Nixes National Security Letter Gag Provision 128

2phar sends news that on Monday a federal appeals court ruled unconstitutional the gag provision of the Patriot Act's National Security Letters. Until the ruling, recipients of NSLs were legally forbidden from speaking out. "The appeals court invalidated parts of the statute that wrongly placed the burden on NSL recipients to initiate judicial review of gag orders, holding that the government has the burden to go to court and justify silencing NSL recipients. The appeals court also invalidated parts of the statute that narrowly limited judicial review of the gag orders — provisions that required the courts to treat the government's claims about the need for secrecy as conclusive and required the courts to defer entirely to the executive branch." Update: 12/16 22:26 GMT by KD : Julian Sanchez, Washington Editor for Ars Technica, sent this cautionary note: "Both the item on yesterday's National Security Letter ruling and the RawStory article to which it links are somewhat misleading. It remains the case that ISPs served with an NSL are forbidden from speaking out; the difference is that under the ruling it will be somewhat easier for the ISPs to challenge that gag order, and the government will have to do a little bit more to persuade a court to maintain the gag when it is challenged. But despite what the ACLU's press releases imply, this is really not a 'victory' for them, or at least only a very minor one. Relative to the decision the government was appealing, it would make at least as much sense to call it a victory for the government. The lower court had struck down the NSL provisions of the PATRIOT Act entirely. This ruling left both the NSL statute and the gag order in place, but made oversight slightly stricter. If you look back at the hearings from this summer, you'll see that most of the new ruling involves the court making all the minor adjustments that the government had urged them to make, and which the ACLU had urged them to reject as inadequate."
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Court Nixes National Security Letter Gag Provision

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  • no kidding. (Score:5, Informative)

    by SinShiva ( 1429617 ) <> on Tuesday December 16, 2008 @04:34PM (#26137071)
    "We are gratified that the appeals court found that the FBI cannot silence people with complete disregard for the First Amendment simply by saying the words 'national security,'" said Melissa Goodman
  • Re:Wow... (Score:2, Informative)

    by Anonymous Coward on Tuesday December 16, 2008 @04:51PM (#26137325)

    Posting as AC to make it quick...

    That's the entire point: It has always been in the realm of the courts to decide things: Is a law constitutional/fair/etc? Is this information going to do more harm or more good if public? (ever hear of a gag order on a case? Happens all the time.)

    The original problem was that the Executive branch was placing itself above all review. In their interpretation, Congress shouldn't be able to outlaw or confine the power (yeah, I know: They started this whole mess...), and the Courts shouldn't be able to negate, throw out, or limit the exercise of Executive power.

    The purpose (IMHO) was to make sure no one was out of control...I think there was a phrase for it...

    (..dusts off old terminology...) Oh yea, it's called "checks and balances."

  • by Blindman ( 36862 ) on Tuesday December 16, 2008 @05:01PM (#26137451) Journal

    Technically speaking, yes. However, any circuit court or district court (in another circuit) will either follow this decision or explain why this decision is wrong. This ruling does make a contrary result in another circuit somewhat less likely.

  • Re:Wow... (Score:3, Informative)

    by Tetsujin ( 103070 ) on Tuesday December 16, 2008 @06:43PM (#26138755) Homepage Journal

    Except nowadays people think that's a bad thing because instead of checks and balances it's called "activist judges".

    That's because they had a nice streak of creating laws rather than enforcing rights.

    What laws?

  • Re:Wow... (Score:3, Informative)

    by Shadow of Eternity ( 795165 ) on Tuesday December 16, 2008 @07:51PM (#26139577)

    Seconded. I've heard that alot but so far nobody has actually been able to provide anything that could really be considered creating a new law from scratch.

  • by Chris Burke ( 6130 ) on Tuesday December 16, 2008 @08:19PM (#26139897) Homepage

    But the Constitution does not have any magical power to protect us. It is a statement that WE must support. Our forefathers died for those words.

    Exactly! I like to think of it this way: The Constitution is not a list of Things That Are -- meaning we have freedom of speech because the 1st Amendment says we do. The Constitution is instead a list of Things That We, The People, Demand -- meaning that the 1st Amendment says we demand that Congress respect our freedom of speech, and if they don't they'll get the King George treatment.

    To the extent that we have retained our rights, it is because we have refused to abrogate them, and to the extent we have lost our rights, it is because we have allowed them to be taken without consequence.

God helps them that themselves. -- Benjamin Franklin, "Poor Richard's Almanac"