A federal district court judge on March 15 ruled that National Security Letters (NSLs) are unconstitutional not only under the First Amendment but also under the “separation of powers” principle. As Alex Johnson, a staff writer for NBC News, put it, those NSLs are “the supersecret mechanism[s] by which the FBI can get your private information without a warrant in the name of counterterrorism.”
The suit was brought by the Electronic Frontier Foundation (EFF), a non-profit digital rights group that supports personal privacy over the Internet, on behalf of an Internet provider that received an NSL from the FBI to provide customer information. The suit claimed the FBI’s letter was unconstitutional under the First Amendment’s guaranteed right to free speech as well as under the principle of separation of powers in that information was demanded without a court order or a probable cause search warrant issued by a judge. When the ruling was announced, the senior staff attorney for the EFF, Matt Zimmerman, exulted:
We are very pleased that the court recognized the fatal constitutional shortcomings of the NSL statute. The government’s [demands and gag orders] have truncated the public debate on these controversial surveillance tools. Our client looks forward to the day when it can publicly discuss its experience.
Part of the NSL statute requires that any company that provides communications services, such a phone companies, Internet service providers (ISPs), and banks, must not only release private information about customers upon demand, but also refrain from informing the customer about the demands. The judge said that since the gag order is unconstitutional, so is the rule allowing the demand without a court order. U.S. District Judge Susan Illson said that the secrecy provision couldn’t be separated from the main body of the law and that consequently that entire section of the law was unconstitutional.
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