“Judge: FBI gag orders unconstitutional”

San Francisco Chronicle on March 15, 2013 released the following:

By: Bob Egelko

“In a blow against government secrecy, a federal judge ruled Friday that the tens of thousands of “national security letters” the FBI sends each year demanding customer records from phone companies, banks and others, are unconstitutional because they forbid recipients from revealing that the letters exist.

While the government has valid reasons to keep secret the contents of the letters, which involve investigations of terrorism or espionage, a gag order that makes it a crime to disclose one has received such a letter “restrains … speech about government conduct” with little opportunity for judicial review, said U.S. District Judge Susan Illston of San Francisco.

She directed the FBI to stop issuing national security letters that contain gag orders, but put her ruling on hold during an expected government appeal.

Attorney Matt Zimmerman of the Electronic Frontier Foundation, which filed the suit in May 2011 on behalf of an unnamed telecommunications company, said Friday that the gag orders “have truncated the public debate on these controversial surveillance tools.”

The company “looks forward to the day when it can publicly discuss its experience,” Zimmerman said.

The FBI referred questions to its national office, which was unavailable for comment late Friday.

The USA Patriot Act, passed in response to the Sept. 11, 2001, terrorist attacks, authorized the FBI to issue national security letters on its own for information that it considers relevant to an investigation of international terrorism or spying.

Virtually all of the letters include a permanent gag order.

In 2008, a federal appeals court in New York found the gag orders constitutionally defective but said most of the flaws could be cured by reinterpreting the law: for example, requiring the FBI to notify the recipient that it could challenge the order in court, and requiring the government to show a “good reason” to maintain blanket secrecy.

In the current case, Illston said Justice Department lawyers told her the government has followed the appeals court’s standards. But she said those assurances weren’t enough, because the FBI has no such policies in writing, and the underlying law remains unchanged.

“The risks of unwarranted suppression of speech inherent in content-based speech restrictions cannot be adequately ameliorated by governmental promises,” the judge said.

Congress amended the law in 2006 to allow recipients to challenge national security letters on constitutional grounds, but left the government with near-total power over the gag orders, Illston said.

In amending and renewing the law, Illston said, lawmakers showed that they were “concerned with giving the government the broadest powers possible to issue … nondisclosure orders and preclude searching judicial review.”

She said there is “no reasonable construction (of the law) that can avoid the constitutional infirmities.””

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Douglas McNabb – McNabb Associates, P.C.’s
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