Here’s the long and the short of it, as summarized in The Wall Street Journal:
A federal judge this week struck down a controversial set of laws allowing the Federal Bureau of Investigation to seek people’s records without a court’s approval, saying the strict secrecy orders demanded by the laws are not constitutional.
US District Judge Susan Illston (Northern District of California) ordered the government to stop sending national security letters or to stop trying to enforce gag orders related to them, but she stayed her order pending the government’s appeal.
Of course, it’ll go to the 9th Circuit, which means it will go on to the Supreme Court, so the fight isn’t over. But this is an excellent start.
Illston’s opinion decried these violations of Americans’ individual freedom:
[The] pervasive use of nondisclosure orders…creates too large a danger that speech is being unnecessarily restricted.
She added [emphasis added]:
[T]he statute impermissibly attempts to circumscribe a court’s ability to review the necessity of nondisclosure orders. …the NSL nondisclosure provisions significantly infringe on speech regarding controversial government powers. … As written, the statute expressly limits a court’s powers to modify or set aside a nondisclosure order to [certain] situations…. The statute’s intent…is incompatible with the court’s duty to searchingly test restrictions on speech.
There are two problems with these letters. One is that they allow searches without a court’s warrant. The FBI can use them to search for phone data and for financial and electronic records, and all the FBI agent needs is his Field Office Special Agent in Charge to say it’s all jake. This is a clear violation of our 4th Amendment.
The other problem worsens this exponentially: the FBI can require (or could before Illston’s ruling) the recipient of the letter to keep quiet about his receipt—denying the owner of the records any opportunity to respond to the search before it happens. This also denies two critical aspects of the 1st Amendment: that right to speak of receipt and the duty of a court to adjudicate any allegation of a 1st Amendment violation.
Illston’s ruling can be read here.