Google fails to strike down FBI's 'unconstitutional' secret gagging orders

Google fails to strike down FBI's 'unconstitutional' secret gagging orders

Summary: The Patriot Act helped strengthen and expand the use of unwarranted, wide-ranging, secret "gagging orders," but the search giant failed to have these letters modified or nullified.

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National Security Letters have been ruled "unconstitutional" by a U.S court — and not for the first time. The Obama administration is appealing the latest ruling.

Google has lost its case against the FBI's secret warrantless requests for citizen's private and sensitive data, despite its claims — and a prior court decision that has yet to be appealed or go into effect — that the secret "gagging orders" are illegal.

First reported by sister site CNET, a U.S. District Judge in San Francisco has rejected Google's bid to modify or nullify 19 National Security Letters, an unwarranted data gathering request by U.S. federal officials.

It's understood that U.S. District Judge Susan Illston found in favor of the government, after two FBI senior officials — including one assistant director — submitted secret affidavits that ultimately swayed the judge's decision towards the U.S. Justice Dept. and the FBI.

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The case was held on May 10 in secret. Because the case was held behind closed doors, much of the hearing remains under lock and key. Google was not even named on the four-page opinion, dated ten days later, by the court's judge.

The FBI has issued more than 300,000 National Security letters since 2000 — with 192,499 letters alone between 2003-2006 — with 97 percent of letters containing a mandatory gagging order.

National Security Letters allow the U.S. Justice Dept. and the FBI to secretly request Web, Internet, and cellular data from companies about a person — and in many cases these companies are legally prevented from disclosing this fact to them. This often prevents the person under suspicion finding out. The FBI argues that this would jeopardize investigations, but it also means that some cannot challenge the order.

In 2008, a Second Circuit ruling found the National Security Letter statute amended by the Patriot Act in 2001 was unconstitutional, and recipients of such letters must be informed so they can challenge them in court. Details such as name, address, and other data is siphoned off by the FBI, so long as it bears relevance to a "national security investigation."

Crucially, there's no judicial oversight. The FBI does not have to go to court to seek such a letter. 

In 2008, a Second Circuit ruling found the National Security Letter statute amended by the Patriot Act in 2001 was unconstitutional, and recipients of such letters must be informed so they can challenge them in court. Details such as name, address, and other data is siphoned off by the FBI, so long as it bears relevance to a "national security investigation."

Google first took on the U.S. Justice Dept. earlier in April when it challenged the use of National Security Letters. The search giant wanted Illston to grant a "petition to set aside legal process" in response to a gagging order it had received from the FBI.

Google began disclosing the number of National Security Letters in numerical ranges in March, which Google recognizes people have "voiced concerns about the increase in their use since [the September 11 attacks]."

It came just one week before a U.S. court found that these secret National Security Letters were in breach of the First Amendment, which protects freedom of speech and expression, and were therefore unconstitutional, said Illston, who also presided over the Electronic Frontier Foundation's case earlier this year.

The U.S. government was given a stay on the ruling for an appeal and was told to stop issuing National Security Letters with gag provisions, which expires on June 13.

The Obama administration submitted its appeal on May 6, paving the way for such gagging orders to continue, should the Ninth Circuit agree with the government's case. 

Topics: Security, Google, Government US, Privacy

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24 comments
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  • Off to court we go

    Google can and should appeal the decision, but the real solution is for Congress to repeal the constitutionally dubious aspects of the statute.
    John L. Ries
    • Patriot Act

      The Patriot Act is actually a very clever legal construction that carefully skirts the constitution. It is morally reprehensible, but I suspect it will eventually be upheld.
      hayneiii@...
      • As Long As Everything is Debated In Secret

        we will never really know what the arguments are, who made them, and whether or not the proceedings were even fair. The judges deciding these things are appointed by the same Administration that is seeking to siphon your information without your knowledge.
        malcolm@...
    • One good thing about this scenario

      One thing that I do like about this is that Google seem content to handle this through legal channels rather than just saying "Yeah, we're not doing that" and effectively daring the government to stop them.

      As much as excessive surveillance bothers me (particularly against people who are not accused, or even suspected, of crimes), I don't feel significantly better about corporations openly spitting in the face of the law, either.

      Repealing the dubious aspects of the statute would stop it this time, at least. I would argue that there's no reason we can't have both: getting rid of the dubious aspects of the statute now, and settling the question so that this battle doesn't have to be fought every time something like this comes up.
      Third of Five
      • WTF

        So you think they should adhere to an illegal law? It's attitudes like this that permit the government to continue abuse the rights of the citizens of this country!!
        eric@...
        • Not exactly

          Simple open defiance of the law probably wouldn't do much good for them or anyone else in the long run. If they can so something to bring the law into open debate in court, that would probably work better in the long run.
          Third of Five
  • Word!

    Empires always self destruct.
    State power always expands until men become slaves.
    Free people forget what it took to regain their freedom as they continually give it up.
    Prosperous societies always become complacent and forget what made them prosperous.

    "Dying societies accumulate laws like dying men accumulate remedies"
    corton
  • It's still un-Constitutional

    The case has not been heard by the U.S. Supreme Court; so there's at least one more level of appeal before we have to sic our idiots of Congress on the FBI.
    Fortunately for the FBI, I don't have access to grant them warrantless access to anything.
    Dr_Zinj
    • Whether or not its constitutional...

      ...is not dependent on what the courts decide. If an act of Congress is unconstitutional, but upheld by the Supreme Court, it's still unconstitutional, but the Supreme Court would have wrongly decided the case.
      John L. Ries
      • Actually,

        the Supreme Court is the decider of what is constitutional, not you, and not me. Even if the Supreme Court later reverses itself, its earlier decision is legally correct, by definition, until it is reversed.
        oldnuke69
        • The job of the Supreme Court...

          ...is to arbitrate disputes. It can't change reality, nor is it authorized to amend the Constitution. It can and has decided cases wrongly (but I think the Supremes usually get it right), but that doesn't change any of the above.
          John L. Ries
        • Actually,

          You're both right. Unfortunately you are talking about slightly different things.

          Being contradictory to the constitution and being "Legal" according to the supreme court are two different things. If the court says that you can't speak in public, own a gun or have free press, then that is the law. It is however a horrible misinterpretation of the constitution. While we may be required to obey the supreme court's interpretation of the constitution, that does not change the fact that the law is unconstitutional. Only the way that it is enforced.
          mrefuman
          • We're required to obey court orders

            Judicial opinions are legal justifications for acts of the court, and while they provide guidance to lawyers and lower courts on what to expect in the future, they are opinions on the law, not the law itself.

            But court orders are only binding on parties to the case in question, not on the public at large (unlike statutes).
            John L. Ries
      • Where in the Constitution

        Is it spelled out the Supreme Court has the authority to decide to uphold or contravene the written text of the Constitution?
        arminw
        • It's implied...

          ...as part of the judicial authority vested in the federal courts by Article 3 (I think John Marshall got that one right), and I think it's been beneficial to have a judicially enforceable constitution, as the only other two alternatives are legislative supremacy (as in the UK) and nullification (as advocated by John C. Calhoun).

          Just because the umpire sometimes makes mistakes doesn't mean there shouldn't be an umpire.
          John L. Ries
          • I would note...

            ...that no reasonable jurist would claim that the courts have authority to contravene the text of the Constitution; but some of the opinions issued by the Supreme Court over the years appear to have little or no relation to the written law, which has definitely undermined the legitimacy of the Court in the eyes of the public.
            John L. Ries
  • Can't get your bill passed?

    Follow these simple steps:

    1. Write down the most despicable things you want on a piece of paper.
    2. Call it the "Patriot Act".

    aaaand you're done.
    Naryan
  • Judges lack reading skills

    The fourth amendment states: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

    It's not that hard to understand, really. It's just that courts over the years have decided that it was inconvenient, so they have been coming up with exceptions that have no basis in the text of the amendment. The FBI needs to get a warrant based on probable cause based on oath or affirmation, specifically describing what they are looking for. Anything less is unconstitutional on its face. The Patriot Act is unconstitutional. No-knock laws are unconstitutional. Stop and frisk is unconstitutional. Unwarranted airport searches are unconstitutional.

    All you have to do is read what the founders said in plain English. Maybe someday we will get some judges who can read.
    Ancient_Mariner
    • Don't Forget Unwarranted DUI Checkpoints

      unconstitutional as well.
      malcolm@...
      • No crap huh?

        DUI's in general are complete crap. No amount of alcohol is going to put me in such a state where I am as unqualified to drive as some of the idiots I encounter on the road every day and yet they are free to drive recklessly and crash into each other all they want under protection of the law while I can go to jail for having 1 beer in California.

        They used a bunch of sad mothers as an excuse to give police the authority to pull over and harass anyone they want any time of the day for any reason.

        They set up DUI checkpoints in my area constantly in places where they know there are no drunk drivers. That is how they circumvent the whole "Racial profiling" thing. They just post up in the predominantly Hispanic neighborhoods and pull over everyone under the guise of DUI checkpoints when they are really just looking for illegal immigrants and Hispanics to arrest. They never put them up in the white neighborhoods.

        And before anyone jumps to conclusions, I am a white man with a spotless driving record. This kind of crap affects all of us.
        mrefuman