Judge Keeps Gag Order In Place On ISP Boss Over Feds Demand For Info On Customer

Tue, Dec 16th 2008 4:23pm

Filed Under:
fbi, first amendment, gag orders, national security letters, nsls

7 Comments | Leave a Comment..

Court Limits, But Doesn't Eliminate, Secrecy Of National Security Letters

from the partial-win dept

The Patriot Act, among other things, allows law enforcement to issue "National Security Letters" to ISPs and telcos to obtain certain information about individuals. The letters are, as the name implies, designed for situations where national security is at stake, and a more thorough process of going through legal channels to gain approval would be a serious threat to national security. Except, of course, that's not how things have worked in practice. The FBI was found to have engaged in "serious misuse" of NSLs on a regular basis, issuing tens of thousands of them. Even worse, part of the rules surrounding NSLs are that they must be kept entirely secret. This raises very serious First Amendment questions. While a lower court agreed that the secrecy on NSLs violated the Constitution, an Appeals Court, that had initially seemed skeptical has allowed the secrecy to continue, though with some limitations.

Rather than saying secrecy was okay, if revealing the NSL would create "interference with diplomatic relations, or danger to the life or physical safety of any person" (the old rule), the court has said the rule should be that secrecy is allowed if revealing the NSL "may result in an enumerated harm that is related to an authorized investigation to protect against international terrorism or clandestine intelligence activities." It is certainly more of a limitation, though some may note that it may not make much of a difference in actual application. NSLs are still likely to be abused, and it's unlikely that most ISPs or telcos on the receiving end of such NSLs will feel concerned enough to challenge them.

Thu, Aug 28th 2008 3:14am

Filed Under:
fbi, first amendment, gag orders, national security letters, nsls

49 Comments | Leave a Comment..

Judges Question Whether National Security Letters Need To Come With Gag Orders

from the where's-that-copy-of-the-constitution? dept

The Patriot Act allows the FBI to issue "National Security Letters" to ISPs and other organizations, seeking information on users of those service providers -- with an automatic gag order forbidding the service provider from telling anyone that they have received an NSL. Not surprisingly, this resulted in the NSLs being widely abused, with the FBI issuing them in many, many cases when they were not appropriate. But, of course, since no one could complain, there was no incentive for the FBI to actually follow the rules. A panel of judges is now reviewing the overall constitutionality of the gag order on NSLs -- and, so far, they seem skeptical. It seems ridiculous that the FBI should be allowed to impart an automatic gag order without any sort of judicial overview -- especially when it's already been shown that the FBI can and does abuse this power quite often.

Wed, May 7th 2008 8:33pm

Filed Under:
aclu, brewster kahle, civil liverties, eff, fbi, gag order, internet archive, national security letters, nsl

9 Comments | Leave a Comment..

FBI Forced To Back Down On Secret Info Request To Internet Archive

from the civil-liberties-matter dept

Congress curtailed the FBI's ability to use National Security Letters (NSLs) a few years ago after it became clear that the FBI was widely abusing the process to request information from organizations with no judicial oversight and with built in gag orders forbidding recipients from talking about receiving the letters. However, the FBI is still using the letters in some cases. Last fall, it sent one to Brewster Kahle and the Internet Archive, demanding info on an Archive user while forbidding Kahle from talking about the letter to anyone but his lawyers. Kahle, the EFF and the ACLU fought back in court and have won, getting the FBI to rescind the demand and also removing part of the gag order, allowing Kahle to say he received the letter (though not discussing what info it demanded). As the EFF points out, this should serve as a blueprint for how others can challenge questionable NSLs as well.

Tue, Nov 6th 2007 11:21am

Filed Under:
national security letters, patriot act