Advocates of open government and civil liberties scored three legal victories last week against state secrecy and the murky national security exception to the Constitution, including rulings striking down national security letters, ordering the CIA to reveal information about its drone assassination program, and approving a settlement that forces the government to disclose details about the “Secure Communities” deportation program.

In the national security letters (NSL) case, Judge Susan Illston ruled that the ultra-secret NSLs that have a gag order are an unconstitutional infringement on free speech. Although she ordered the government to stop issuing them and to cease enforcing their gag provisions, Illston stayed her order for 90 days to give the government time to appeal to the Ninth Circuit Court of Appeals, which it will surely do.

NSLs allow the government to demand—without a warrant—that Internet service providers, libraries, banks, etc., hand over people’s confidential records, such as profile information, books checked out, phone numbers dialed, websites visited, and more. They are prone to abuse because they include an indefinite gag order barring the recipients from disclosing to anyone that they have even received an NSL. To get one, an FBI agent merely has to assert that the requested data is “relevant” to an investigation regarding international terrorism or secret intelligence activities.

The case arose when the FBI, which has issued more than 300,000 NSLs just since 2000 and has admitted to abusing them, issued an NSL to an unnamed telecom company, seeking information about a customer or customers. The company, however, took the unprecedented step of obtaining the assistance of the Electronic Frontier Foundation in a challenge to the constitutionality of both the NSLs as such and the accompanying gag orders.

The Department of Justice demonstrated the high value it places on NSLs when it took the equally unprecedented step of suing the telecom, arguing that the company’s temerity in challenging the government’s authority was itself a violation of the law.

A Bill Clinton appointee, Judge Illston agreed with the telecom, saying that the gag orders “significantly infringe on speech regarding controversial government powers.” Although she acknowledged the strength of the government’s argument in favor of more limited gag orders, Illston held that the blanket ban on merely disclosing that an NSL has been received was overly broad and “creates too large a danger that speech is being unnecessarily restricted.”

Illston also ruled that the review process for challenging an NSL violates the separation of powers by limiting the ability of federal judges to review the constitutionality of the statute. Because the gag order provisions cannot be separated from the rest of the statute—they are included in 97% of NSLs, Illston ruled that the entire statute is unconstitutional.

-Matt Bewig

To Learn More:

Federal Judge Finds National Security Letters Unconstitutional, Bans Them (by Kim Zetter, Wired)

FBI Surveillance Tool is Ruled Unconstitutional (by Ellen Nakashima, Washington Post)

In re National Security Letter (2013) (pdf)

Obama Nominees to Privacy and Civil Liberties Board Finally Get a Hearing (by David Wallechinsky and Noel Brinkerhoff, AllGov)