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The Courts News

Federal Court Invalidates 11-Year-old FBI Gag Order On NSL Recipient 81

vivaoporto writes: The Calyx Institute reports that an 11-year-old gag order has been lifted from the recipient of a National Security Letter served by the FBI in 2004. A federal court found there wasn't a "good reason" to keep the man, Nicholas Merrill, from talking about it, "nor has the Government provided the Court with some basis to assure itself that the link between disclosure and risk of harm is substantial." The judge who invalidated the gag order, Victor Marrero, is the same judge that struck down a portion of the revised USA PATRIOT Act in 2007, forcing investigators to go through the courts to obtain approval before ordering ISPs to give up information on customers, instead of just sending them a National Security Letter. After a 90-day waiting period (for the government to mull an appeal), Merrill will be able to say whatever he wants about the case, finally completing the partial victory he managed back in 2010.
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Federal Court Invalidates 11-Year-old FBI Gag Order On NSL Recipient

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  • by nobuddy ( 952985 ) on Tuesday September 15, 2015 @04:32PM (#50527575) Homepage Journal

    To allow for appeals. A great step forward, but not yet a victory.

    • The best case I can make for the government is an innocent person happens to be an associate of a terrorist suspect, and letting the innocent person talk about it would alert the suspect.

      It isn't much, and I don't know if it is even proper to do that.

      • by AK Marc ( 707885 )
        How would a gag order help anything? The innocent person would simply tell the suspect that he got a gag order he can't talk about, wink wink. Then, without violating the gag order, the suspect would know 90% of what he needs to know to invalidate any reason for the gag order.

        Gag orders have no useful purpose, unless issued on *everyone* between an arrest and trial (called "name suppression" everywhere outside the US). This common practice ensures "innocent until proven guilty" survives. After all, who
        • by Anonymous Coward

          Anyone who thinks OJ did it, and was not privy to all the evidence (e.g. part of the trial), is a fool who has been manipulated by mass media. The fact is that none of us know any key evidence of that trial. To be honest what I do know shows that no one could ever be convicted of that crime, because the investigating police screwed up so bad that they should be charged. Our system is based on the ideal "It is better that ten guilty persons escape than that one innocent suffer" - Blackstone's formulation. So

        • by cfalcon ( 779563 )

          Everyone believes OJ did it because OJ did it. When you say "that's not the way it's supposed to work", I think you mean that we aren't supposed to consider someone who was not found guilty to be guilty- that it's a failure of the system that we do. But the standards of evidence are different- it's reasonable to assume a system will find that someone who did commit a crime to not be provably guilty some reasonable percent of the time, because the standard is "beyond a reasonable doubt".

          Everyone knows OJ d

          • by gweihir ( 88907 )

            Only retards "know" this. In order to "know", you actually have to have evidence strong enough for a conviction.

            • by cfalcon ( 779563 )

              Nope. In fact, only a retard would fail to distinguish between knowing something and being able to prove it in court beyond a reasonable doubt.

              Everyone. Fucking. Knows. It.

              And for good reason. He did it.

              You would expect guilty men to go free in a society with high standards of proof of guilt. It's reasonable (and correct) to assume someone not found guilty is, did, in fact, do the time.

              OJ essentially confesses in a book, and also there was even more stuff that would have been "evidence" that came out

              • by cfalcon ( 779563 )

                ** It's reasonable (and correct) to assume someone not found guilty did, in fact, do the crime.

            • by cfalcon ( 779563 )

              Here a fast google finds this:

              http://www.ocregister.com/arti... [ocregister.com]

              So we have OJ confessing, and a guy overhears it, and it gets thrown out as possible evidence. It's reasonable to throw it out for a jury trial, but it still happened.

              Trials are not reality. Trials capture some subset of reality. You can look up false convictions, and we have a system rigged in favor of the defendant, so it's utterly irrational to assume that there would be more false positives (false convictions) than false negatives (guilty

        • by gweihir ( 88907 )

          You seem to think this system is a bout justice and doing what is right. Or even just respecting the constitution. It is not, the occasional judge that is actually honest and understands things notwithstanding.

      • by mcl630 ( 1839996 )

        That doesn't really apply here. Merrill runs an ISP and the NSL was (presumably) for information on one or more of his customers. Disclosing what types of information the FBI wanted still wouldn't tell you which customer(s) they were investigating. And its a moot point anyways, as the FBI admits the case(s) was/were closed years ago. There's no possible justification left here for a gag order.

        NSLs were intended for time-sensitive extreme cases where the suspect(s) can't be tipped off, but the FBI issues

        • the justification is along the lines of:

          --
          If it becomes public knowledge that we can collect XXX from an ISP, then terrorists will know that XXX is unsafe and start to use alternate means to do YYY.
          As a result, we'll be less likely to catch them.
          --

          It's not an illogical argument. The question is whether it is constitutional and/or proportional.

          • by mcl630 ( 1839996 )

            That falsely assumes that the FBI always collects XXX and only XXX and hasn't and will never collect YYY or ZZZ.

            • by aybiss ( 876862 )

              ....and that they aren't already using YYY and ZZZ, and XXY, and XYZ.

              If the terrrorists really want to stop you seeing what they're saying, they simply won't use any combination of X, Y or Z. They'll use A, B and C where those things are completely unknown to you.

  • has a probation period of 90 days
  • by xxxJonBoyxxx ( 565205 ) on Tuesday September 15, 2015 @04:49PM (#50527681)

    >> A federal court found there wasn't a "good reason" to keep the man from talking about it ...because 11 years ago there was still a debate raging about "whether" we should be under surveillance at all times, whereas the debate has now shifted to "how" we are under surveillance at all times.

    • by Anonymous Coward

      NO NO NO.
      There is NO debate about WHETHER or HOW mass surveillance.

      The CORRECT answer is NO mass surveillance.
      And a great big FUCK OFF to anyone like you who says or implies there ever should be.

      • by gweihir ( 88907 )

        As mass surveillance is exclusively done in totalitarian states, it is pretty clear there is a strong faction on government that wants this very much. This also means that to any citizen there is no sane way to be for mass-surveillance.

        But hey, Hitler got cheered into office. The masses are stupid.

        • Hitler didn't get cheered into office while talking about gassing Jews though.

        • by doccus ( 2020662 )

          As mass surveillance is exclusively done in totalitarian states, it is pretty clear there is a strong faction on government that wants this very much. This also means that to any citizen there is no sane way to be for mass-surveillance.

          But hey, Hitler got cheered into office. The masses are stupid.

          Seems to me this could be shortened a bit.. "As mass surveillance is exclusively done in totalitarian states, it is pretty clear that we must live in a totalitarian state"

  • by DoofusOfDeath ( 636671 ) on Tuesday September 15, 2015 @04:56PM (#50527729)

    we don't arrest, try, and if convicted, punish nearly enough FBI, NSA, and CIA agents.

  • Freedom? (Score:5, Insightful)

    by Moof123 ( 1292134 ) on Tuesday September 15, 2015 @05:00PM (#50527751)

    11 years to get justice is not something we should be proud of. How we can argue our system of laws and democracy is any sort of role model is completely lost on me.

    • by bmo ( 77928 )

      Pretty much this.

      He hasn't "won" anything. He merely has his rights back which were taken away unlawfully.

      The FBI won a 11 year silence outta this guy.

      Someone up there said that he hoped that whatever it was wasn't *too* embarrassing to the agency so that he wouldn't be "disappeared" before the 90 day clock runs out.

      Ya know, if I were me, I would have a deadman-switch on any kind of information that I was forced to keep quiet. If I died, the information would become public. It's easy enough to do, and sh

      • My guess is the guy really was not even dealing with anything all that important. Time and again when the veil has finally been pulled back there have been only benign things being protected. What we have seen is a pattern where warrants are too hard, or the evidence for one is too shaky, so an NSL is an easy way to get the same thing done without all those annoying due process steps to deal with.

        It is the corollary to the TSA security theater. "National Security" gets waived around like some trump card

      • NSL's lack consequence to those that are writing them. If they are going to stay around they need personal consequences to whoever ordered them and attested to anything in them if they are found to be invalid, overreaching etc etc. That needs to be coupled with the government automatically paying all legal costs win or lose. Nobody should have to be out of pocket to defend their basic rights from the government.

        • I completely agree that NSL's lack consequence to those that write them. The lack of a court involved, and the tendency of court to issue them on the slightest prtext or with "rubber stamp" approvals contribute to this lack.

          I'm not sure I can endorse "the government automatically paying all legal costs". Some suits filed will be stupid, and expensive, and filed by companies that that _do_ commit criminal abuses such as selling weaponry to foreign enemies.

          • I'm not sure how a suit will be stupid to fight a NSL. This is general asking for third party data after they can not let the actual owner of the data know so they should be act as a good custodian of their data. You think a company suspected of gun running is going to get a NSL letter asking them to divulge that they are?

            • > I'm not sure how a suit will be stupid to fight a NSL. This is general asking for third party data a

              I assume that you mean that NSL's in general, ask for third party data. While this is true, it's the _specific_ cases, such as the Silk Road operators, who'd gladly reach out for lawyers at no fiscal risk to themselves. And that was a service where the owners of the service, themselves, have been convicted of criminal behavior involving that service. So I'm unclear why you think that a "company suspected

              • A company suspected of gunrunning should be getting a subpoena not a NSL.

                The silk road had no company to send a NSL to it was a dark web operation pure and simple.

  • by gurps_npc ( 621217 ) on Tuesday September 15, 2015 @05:01PM (#50527757) Homepage
    These things should, as a matter of law, have an expiration date set when they are declared. Let the US government come in and argue to extend it all they want, but they should all come with an automatic expiration date.

    In addition, any and all "statue of limitations" should res-start for any information that that was gagged.

    Same thing for non-disclosure and confidentiality agreements - not to exceed 10 years.

    • by orlanz ( 882574 )

      No, you are being too easy on them. 80% of such can have 5 years, 15% can have 10 years, and 5% can have 15 years. They can extend all they want, but can only extend 20% of outstanding orders. That way the supposed "open" government only operates 20% in the shadows. They have full freedom to choose which 20%. Our nation isn't so fragile that we need this many protections on national security. And if it was, for God's sake, let the darn thing die and be reborn stronger.

      For non-disclosure & confiden

    • You've hit upon something important. Most Slashdot readers haven't been served any kind of gag order, but I'll bet quite a few of us are under NDAs and confidentiality agreements. In a nutshell, the situation is that, if you have signed this sort of agreement, it can be used as leverage against you, even if you aren't breaching it in any way. Just the threat of legal action can be used to push you around. You could be forced into a court room to argue against an organization's claims. Even if squeaky clean
  • Many Americans have a very wide concept of freedom, almost to make it meaningless.

  • by Thing 1 ( 178996 ) on Tuesday September 15, 2015 @05:15PM (#50527877) Journal

    If not, then they have no say over your non-harming actions -- just as Walmart cannot fine me for violating their internal policies, but they can fine their workers. If you harm someone, then you're going to face consequences, whether through Common Law, or through vigilantism.

    But, they don't want anybody to understand that their rules only apply to their employees. Which is why they crack down on people distributing FIJA fliers (from http://fija.org/ [fija.org] -- note that they take Bitcoin donations now!) outside of courthouses.

    The Constitution guarantees a freedom of expression in the first amendment. It does not say, "This amendment is inferior to NSA letters"; it says, and I quote, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

    The existence of "government classified information" precisely indicates the existence of "government conspiracies." A conspiracy is when two or more people work together, when one or more other people don't know about it. A surprise party is a benign form of conspiracy. Malicious forms include the mafia, the Patriot Act, etc.

    Now, were I in his position, would I speak freely? That's a difficult one; I like my freedom, but then again I'm a shard of light and I'll return to the Creator so it doesn't really matter what happens to this corpse. Still, I avoid pain.

    • by mark-t ( 151149 )

      ...Walmart cannot fine me for violating their internal policies, but they can fine their workers.

      Do you have a reference for that?

      • It's incorrect. They can dock your pay (though you could take them to court over that if it appears unjustified) or fire you (same), or sue *you* for breach of contract, or press criminal charges (if they can convince the cops to do so) and hope the justice system will fine you for them, but they cannot unilaterally fine you. An employment contract does not give the employer that kind of authority over you; only the courts (civil or criminal) have that power.

        • by mark-t ( 151149 )

          They can dock your pay

          No, they cannot. Not legally, anyways.

          though you could take them to court over that if it appears unjustified

          One wouldn't have to.... just file a complaint straight to the government and let them fight it for you. You'd probably get fired, of course... but you'd still eventually get all of the money that they owed you (within 4 to 6 weeks on the outside, if you are unlucky). Also, the employer would face a fine.

          Employers are are *NOT* legally allowed to be docking employee pay for

    • by houghi ( 78078 )

      USofA is a thoughplace to work. Where I live, a compaby can not fine their workers. They can fire them, but not fine them.

      They can reprimand them, but that is different.

      If tghe company wants you to feel the consequences, they can do several things.
      1) Not give you a bonus
      2) Never ever give you a promotion again
      3) Never give you a raise
      4) Go to court

      But they need to watch out for 2 and 3 that it isn't harrasment, because that could mean that the person takes them to court.

      But the company can not fine you.

  • Judicial Activism (Score:5, Insightful)

    by Grishnakh ( 216268 ) on Tuesday September 15, 2015 @05:19PM (#50527901)

    The judge who invalidated the gag order, Victor Marrero, is the same judge that struck down a portion of the revised USA PATRIOT Act in 2007, forcing investigators to go through the courts to obtain approval before ordering ISPs to give up information on customers, instead of just sending them a National Security Letter.

    Uh-oh, it's one of those activist judges again!! How dare a judge stand up for our rights!

  • What happens if you leak the letter? Jail time? What if a copy shows up on Wikileaks? They can't prove 100% you leaked it.

    • These have been written to even exclude your lawyer with lots of scare tactics. Lots of statutes like obstructing justice give broad capability to go after you. We are all un-indicted felons in some way. All it takes is a determined enough prosecutor and enough apathy on the public's part..

      • They are written to imply getting a judge to agree is a different matter. At worst you need a lawyer with clearance somewhat hard to do but not impossible.

        • it blows my mind that the US gov can attack a citizen like this and also scare punishment into him for his LEGAL RIGHT to seek a lawyer when being legally confronted.

          no lawyer? how is that possible? I know, it was all back room laws that we were not meant to have input on. but still, this is a french-revolution style injustice. if heads needed to roll in modern times, this would be one qualifying event.

          you want to put legal shit on me? AND deny me any right to even examine this and see if there was jus

    • What happens if you leak the letter? Jail time? What if a copy shows up on Wikileaks? They can't prove 100% you leaked it.

      They can if you were the only one who received the letter.

    • What happens if you leak the letter?

      Who says that they let you keep the letter, or even make a copy of it? They probably just flash it to your lawyer once, and then the letter disappears again.

      A Top Tip from Nazi war criminals . . . never leave behind a paper trail . . . anything incriminating with your signature on it.

  • by PopeRatzo ( 965947 ) on Tuesday September 15, 2015 @05:37PM (#50528019) Journal

    Sometimes, the really great men go unsung:

    The judge who invalidated the gag order, Victor Marrero, is the same judge that struck down a portion of the revised USA PATRIOT Act in 2007, forcing investigators to go through the courts to obtain approval before ordering ISPs to give up information on customers, instead of just sending them a National Security Letter.

    Judge Marrero, we salute you.

  • by RealGene ( 1025017 ) on Wednesday September 16, 2015 @10:01AM (#50531845)
    So that everyone could simply have a web page stating "As of today's date, your name has not received a National Security Letter".
    It's not against the law to remove a web page (yet).

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