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Google must comply with NSLs, says judge

District court judge Susan Illston, the same judge who a few months ago ruled National Security Letters (NSLs) to be unconstitutional, has now ruled that they do not violate Google’s constitutional rights. In March 2013, Judge Illston ruled “that the nondisclosure provision... violates the First Amendment... The Government is therefore enjoined from issuing NSLs... or from enforcing the non-disclosure provision in this or any other case.” She gave the government 90 days to appeal, which it did earlier this month.

NSLs are issued by the FBI in the name of national security. They do not require a court warrant and almost always include a nondisclosure provision. They are used by the FBI to collect users’ name, address and other account information from web and telecommunications companies. Their use was expanded beyond just counter-espionage by the Patriot Act, and it is thought that some 300,000 NSLs have been issued since 2000.

Now judge Illston has ruled on Google’s challenge against 19 NSLs, saying that the company must comply with 17, and asking for more details on two. But she also invited Google to appeal, and effectively explained how it needs to appeal: Google’s case was too general and non-specific on the 19 NSLs. Illston is leaving her position in July, and it would also seem that she doesn’t wish to rock the boat while the Ninth Circuit Court of Appeals is reviewing the constitutionality of NSLs following her earlier ruling.

Google has not commented on the case. This is unsurprising given Illston’s ruling that it must comply with the NSLs, and they will almost certainly include non-disclosure. It is only ‘assumed’ that Google is the petitioner based on a comment by the judge – that the petitioner was involved in a similar case filed on April 22 in New York federal court. “Public records show that on that day,” comments the Guardian, “the federal government filed a "petition to enforce National Security Letter" against Google after the company declined to cooperate with government demands.”

Although the constitutionality of NSLs has still to be decided, it would appear that the government is not going to relinquish their use easily. “We are in this interesting in-between moment in which the government is still able to enforce its authority,” said Marc Rotenberg, president and executive director of the Washington-based Electronic Privacy Information Center (reported by Bloomberg). “I suspect that this filing is an effort to push the issue further.”

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