Friday, March 22, 2013

Left Side of the Aisle #100 - Part 4

Good News #4: NSLs held unconstitutional

Last week I mentioned these outrageous, extrajudical, warrantless demands for personal information called National Security Letters, or NSLs.

Early last year, the FBI sent such a secret letter to a phone company demanding that it turn over certain customer records. We don't know what company or what records, because the recipient of such a letter is barred from even revealing they received it.

In this case, the phone company did something almost unheard of: It fought the letter in court. A 2006 amendment to the so-called Patriot Act - which I call the Traitor Act for its impact on privacy and civil liberties - allows such challenges.

However and despite that amendment, the Obama administration, which came into office pledging the most transparent administration ever, replied with a civil complaint charging that the company, by not simply passively obeying and handing over its files, was actually violating federal law by interfering "with the United States' sovereign interests" in national security.

The whole case is a little complex and shrouded in the mists of official secrecy - even now, we don't know the name of the company. For what it's worth, the Wall Street Journal suggests that it is Working Assets, a liberal San Francisco-based telcom which has a wireless service called Credo.

This is what we do know: Using that 2006 amendment, the company is challenging not only the letter but the part of the law that requires its silence, arguing that's a violation of its free speech right. In response, the NoJustice Dept. is arguing the company can't challenge the constitutionality of the law under the amendment and in fact can't challenge it at all because the government has "sovereign immunity" against lawsuits. That's usually applied only in cases seeking monetary damages and if applied in a case like this would essentially ban any Constitutional challenge to any law unless the Executive Branch chose to allow for one.

In light of all that, what's the good news? On March 14, US District Judge Susan Illston in San Francisco struck down sections of federal law that allow for NSLs, declaring that they suffer from "significant constitutional infirmities."

The downside is that she put a hold on the order to allow the government time to appeal and there is a real risk that her decision will be overturned simply because - well, because "national security." You know.

Still, combined with an earlier decision by the the Second Circuit Court of Appeals in New York that struck down some aspects of the National Security Letters statutes, there is maybe a sign that people - and courts - are starting to think the obsession with "security" has gone too far and are starting to at least try to claw back some of the ground lost. And that is good news.


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