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Judge says National Security Letters are unconstitutional

NSLs are issued by the FBI on telecommunications companies to gain account information on suspects. They require no court authorization, no justification, and include an order that prohibits the recipient from saying anything about them or warning their customer/s that they are being targeted by the FBI. The UK has something similar in aspects of the 'Tipping-off' section of the Regulation of Investigatory Powers Act (RIPA) which enjoins the recipient of a demand for encryption keys, “and every other person who becomes aware of it or of its contents, to keep secret the giving of the notice, its contents and the things done in pursuance of it.”

The difference between the UK and the US is that the latter has a written constitution and a First Amendment to that constitution. That First Amendment prohibits the government from impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, or more to the point, prohibiting the petitioning for a governmental redress of grievances. A gag order does exactly that. Following receipt of one or more NSLs, an unnamed telecomms company decided in 2011 to challenge their legality, under the First Amendment, in the US courts, and was supported by the EFF

The court has now delivered its verdict: “the Court concludes 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.” It is a significant victory for the unnamed telecomms company and the EFF, tempered only by the rider, “given the significant constitutional and national security issues at stake, enforcement of the Court’s judgement will be stayed pending appeal, or if no appeal is filed, for 90 days.”

For at least 90 days, then, the telecomms company can still say nothing – it cannot celebrate a judicial victory because it is still gagged by the NSLs is may or may not have received. The Guardian reported on Saturday, however, that it believes that company to be Credo Mobile, “a subsidiary of Working Assets Inc, that directs some of its profits to support civil liberties groups.” The Guardian is not alone in this belief. Last summer the Wall Street Journal analyzed the likely telecomms companies and came to the same conclusion.

The ruling does not necessarily prevent a new form of NSL in the future – only the inclusion of a gagging order within it. But what it does do is open the use of such government surveillance to public scrutiny. “The First Amendment prevents the government from silencing people and stopping them from criticizing its use of executive surveillance power,” commented EFF Legal Director Cindy Cohn. “The NSL statute has long been a concern of many Americans, and this small step should help restore balance between liberty and security."

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