15 March 2013

Law in Plain English: In Re National Security Letter

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

In Re National Security Letter

The FBI issued a national security letter (NSL) to an unnamed ISP for certain subscriber information. The FBI certified that disclosure of the NSL could harm national security, so the ISP was prohibited from disclosing to anyone that they had received it (a gag order). The ISP challenged the constitutionality of the  non-disclosure provision as a violation of free speech, and challenged the judicial review provisions as a violation of the separation of powers. Judge Susan Illston of the United States District Court for the Northern District of California ruled that the nondisclosure provision was a form of prior restraint which was not narrowly tailored, since the provision applied to both the content of the NSL and the fact that the ISP even received it. As a result, it violated the ISP's freedom of speech. Additionally, the judicial review provisions violated both the First Amendment and the separation of powers principle by trying to narrow the ability of courts to review the nondisclosure orders. Furthermore, she prohibited the government from issuing any NSLs or from enforcing the nondisclosure provisions in this case and in any other cases. Lastly, she stayed enforcement of the judgement pending appeal or 90 days if there is no appeal (although that seems entirely likely).

Update (8/13/2013): I missed this a few months back, but the Government did file a notice of appeal.

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