
Federal Judge Finds National Security Letters Unconstitutional, Bans Them - TDL
http://www.wired.com/threatlevel/2013/03/nsl-found-unconstitutional/
======
rayiner
_Great_ work by the EFF here. There is a delicate balance between the power of
the executive and the power of the courts and trying to chill the telecom's
access to the court system by claiming that the company was interfering with
an investigation by challenging the NSL is a deeply troubling action. Abuses
can be fixed, but not if they can't be challenged in court.

~~~
mrich
Kudos also to the unnamed telecom company that went out of their way to fight
this, and the EFF for fighting the good fight. Don't forget to donate to them.

~~~
fnordfnordfnord
Credo mobile, it's in the article.

~~~
macchina
Yeah, Credo is sort of a bizarre little company. They created a Super PAC to
oppose tea party candidates and to support public financing of campaigns,
i.e., outlawing Super PACs (they were a total anomaly in this regard). In
2011, they received one of those so called "national security letters" and
just completely stonewalled the FBI. Thank god for this one activist mobile
carrier or this case would've probably never happened.

~~~
pinko
Credo is the latest incarnation of the old Working Assets long-distance firm,
if you're old enough to remember them and that helps explain their politics.

~~~
Snoptic
Wow,nice!

Just saw their website. Impressed by the progressive values, saddened by the
partisan politicking ('fight the right', WTF?

------
mmastrac
This part is a big WTF: "After the telecom challenged the NSL, the Justice
Department took its own extraordinary measure and sued the company, arguing in
court documents that the company was violating the law by challenging its
authority."

~~~
anigbrowl
This is exactly what's _supposed_ to happen; the DoJ brought the dispute to
the judicial branch and asked a court to resolve it, as opposed to arresting
people or seizing control of the assets. They didn't seek the breakup of the
company or the arrest or ruin of its officers, they asked the court to require
compliance with what they believed to be a valid request in the form of the
NSL. The court sided with the defendant, and the DoJ is going to have to abide
by that unless they win at appeal.

This is exactly why we have a judicial branch to begin with. You should be
celebrating.

~~~
guelo
Wrong. The telecom's suit is the challenge that you're talking about. The
second suit claims that the first lawsuit is illegal. It would mean that
you're not allowed to challenge the government in court. It would make your
flowery language invalid.

~~~
tomkinstinch
> It would mean that you're not allowed to challenge the government in court.

IANAL, but is it not true that you can only sue the government to the extent
that it lets you?

Can a lawyer chime in on the extent of sovereign immunity?

~~~
white_devil
> IANAL, but is it not true that you can only sue the government to the extent
> that it lets you?

It doesn't really matter what _laws_ say about that. Your only recourse
against wrongdoing by the government is the justice system run by _the very
same government_. It's certainly within its power to decide not to _punish
itself_.

This is perhaps something to think about.

~~~
rayiner
The government isn't a monolithic entity. It's composed of people who have
often differing interests to each other. The justice system is run by the
government, but that didn't stop e.g. the Supreme Court from ordering the bush
administration to give process to the Guantanamo prisoners (and the
administration complied!)

~~~
unclebucknasty
Yeah, and of course this is just fundamental separation of powers by design,
else the government would be exactly a monolithic entity.

But, then this type of victory seems rare these days, as the Executive has
grabbed so much power since 9/11. Seems the balance has been upset.

~~~
rayiner
The "power grab" since 9/11 is mostly imagined. There is very little the
President can do now that he couldn't in 1970, and as a practical matter he
can do a lot less than he could in 1955.

~~~
unclebucknasty
Not true. In fact, that's a pretty astounding statement.

Executive power has expanded greatly since 9/11. The PATRIOT Act alone vastly
expanded law enforcement capabilities. Law enforcement, of course, being of
the Executive and including the DOJ. In fact this thread likely wouldn't need
to exist if not for the expansion of NSL under the PATRIOT Act. Many of the
rights that we ceded as citizens were given over directly to the Executive.

Remember, the Executive branch is more than just the President, but includes
all departments under his purview.

I think if there is a myth it is among those who believe that nothing has
changed simply because some of these mechanisms (such as NSL and FISA) did
exist prior to 9/11. But, in addition to new powers, it is the expansion,
interpretation, and application of existing powers that have also represented
a large share of the power grab. This started with Bush after 9/11 with his
adherence to the theory of the strong unitary executive. This is when we began
to see the letters of his attorneys, which re-interpreted existing powers much
more broadly and sought to justify unprecedented Executive actions
retroactively. That there was never a trial indicates that they were, in fact,
successful in their claims to additional power.

Of course one can also point to launching pre-emptive wars as an unprecedented
power grab--perhaps of the highest order.

And, essentially, these powers continue to expand under Obama, up to and
including the remarkable justification of drone strikes on American citizens.

~~~
rayiner
This is mostly just "truthy." In reality, federal surveillance was
dramatically higher during the Cold War (modulo improved technology), and the
idea of the strong unitary executive dates to the founding of the republic.
Stuff that you claim is "unprecedented" is anything but. The concept of
"preemptive war" has no real distinguishing characteristic in an American
history full of military interventions absent direct attack.

There is nothing "remarkable" about the justifications for drone strikes
against ostensible American citizens who have taken up arms against the U.S.
and are not on U.S. soil. Skirting along a murky and untested line? Sure, but
not "remarkable." There is no consensus among legal scholars on the issue, and
it is not without precedent (there are records, of various reliability, of
Americans who fought for the Nazis and were killed in the war).

~~~
D9u
Further, and tangentially, the idea that I have to remove my shoes prior to
boarding a commercial airliner, without any (I've never hijacked a plane
before) probable cause, in the same airport that I once carried weapons
through while in the service of the US Army, is a definite affront to my
sensibilities, especially as a loyal American.

Just because a small group of predominantly Saudi Arabian nationals hijacked
some planes doesn't mean that _I'm going to do so._

There were hijackers back in the 1970's, but no one was subjected to such
indignities as we are now. Before anyone mentions "the shoe bomber," how about
"the underwear bomber?" Following the shoe removal logic, the next step is
strip searches of _all_ passengers prior to boarding, right? Someone might
have some explosive underwear! /sarcasm

~~~
XorNot
By this logic you've just eliminated the point of all security screenings of
anyone, anywhere, ever.

Yet most people would agree that it would be foolish not to take some
precautions when loading 300 people on a cigar-tube cylinder in the sky.

It's worth noting that in the 1970s people weren't trying to commit mass
casualty attacks with planes via the passengers nearly as often. Today, no one
expects a conventional hijacking either.

~~~
unclebucknasty
By your logic, the extent to which we protect American ideals and freedoms is
a function of what other actors do. Worse, it is the most egregiously
abhorrent actors who would drive our direction most.

The problem with this thinking is that it has brought us exactly to where we
are today. It is a very slippery slope that can literally destroy the fabric
of this country. There is no end to what can be justified under the pretext of
security and we have already given up too many freedoms in the name of
"security". I will omit the famous Ben Franklin quote regarding freedom and
security, but it certainly comes to mind.

Those who would argue that it is necessary to curtail freedoms and rights in
exchange for protection, must acknowledge that what they presume to protect
would be a wholly different America, and they must be well with this new
America. To make that argument would be honest and a simple matter of opinion,
but to suggest that we can continue on this course without fundamentally
altering this nation is nothing more than illusion.

~~~
XorNot
Your freedoms are hardly being overtly invaded by being security screened when
you fly. Whether the security screening is _effective_ or a distraction is a
different question (or dangerous, in the case of the X-Ray backscatter).

I'm curious what freedoms you think you've given up in the name of security,
that aren't simply complaints about being inconvenienced. Because there's
plenty of real problems, but, in the context of this little comment-chain, the
issue was airport security.

~~~
unclebucknasty
You mean what's more invasive than being groped and having an image of my
genitals taken when I fly? I think that's overt enough and more than mere
inconvenience.

Also not sure how you discount being exposed to dangerous radiation as not
"overtly invasive". I certainly don't see that as a different question.

But, I actually wasn't focused on airport security as much as the spirit of
your response. This idea that we have to meet everything the bad guys do with
"more security", which does equal less freedom, rights, and privacy. The
PATRIOT Act, of course comes to mind.

Though, it certainly applies to the airport scenario too. Bad guys put a bomb
in a shoe? We all take off our shoes now. Bomb in the underwear? We move to
backscatter machines that image what's underneath. Where does it stop? It's
crazy, and it's a product of the same general reactionary thinking that
brought us the "plenty of real problems" you referenced.

------
Osiris
One of the main points of the U.S. constitution is to provide checks and
balances so that one branch of government cannot ac t unilaterally without
oversight. For the executive branch to argue that in this case there is no way
to challenge it is disingenuous at best and at worst, as this judge pointed
out, unconstitutional.

It's frustrating to me as a citizen that if a government agency decides it has
a problem with me, I'm pretty much screwed unless I have plenty of cash to
hire the best lawyers.

~~~
anigbrowl
Realistically, you are just as screwed if any large organization launches a
civil suit against you. Congress frequently produces laws that attempt to
mandate the behavior of the Executive branch* while excluding that behavior
from judicial review (which courts do not take kindly to and frequently
dismiss).

A lot of legislators do not like the Judicial branch and consider it to be an
annoying restraint on their lawmaking power; what looks like tension between
the Executive and Judicial branches is often as not a proxy for Legislative
claims. Whenever you see a piece of legislation with phraseology like
'[officer of some executive branch agency] shall do x, y, z, in the following
fashion...' pay attention to the word _shall_. In law this is understood to
make the action mandatory, and where the law is very specific on procedures
and actions it's basically an attempt to micromanage the operation of the
agency in question.

Consider the following imaginary law:

 _If any person wears white after Labor Day, the head of the Fashion Police
shall cause that person to be arrested and fined $1,000. This procedure shall
not be subject to judicial review._

Now if you're the Fashionista-general, you have _no choice_ but to arrest
people wearing white after Labor Day [for non-Americans, wearing white after
late September is jokingly regarded as an offense against good taste]. Failure
to do so clearly violates the oath of office required of office-holders in the
Executive branch. And the same law says that you don't get to complain about
this in court, so judges are supposed to dismiss your case without even giving
it a hearing. That will make people mad with the Fashion Police and frustrated
with the Courts, even though the blame for this law lies with the Legislature.

Here's an example of a real law that operates this way, from a current
immigration statute: <http://www.law.cornell.edu/uscode/text/8/1252>

Note section (a)(2)(A)(i): the law applies to people who receive orders of
removal, aka deportation orders (a); it's explicitly not subject to judicial
review (2)(A); and the procedures for dealing with individual cases are very
narrowly specified in the section linked to from clause (i), with a lot of
detail specifying how people shall be categorized and treated.

~~~
wnight
And (a) explicitly not constitutional in that it attempts to bypass the limits
knowingly placed upon government by the people. An order to bypass auditors is
_never_ valid, especially from government.

That you think this is okay is scary. But this is why we need to remember that
the law is an imperfect rendering of our intent, not the other way around.

~~~
anigbrowl
You need to distinguish between the different branches of goverment; it's not
a monolithic entity, nor is it constituted as one.

It's not as clear as you think that the example above isn't constitutional,
because in making immigration law Congress is exercising one of its enumerated
powers to 'establish an uniform rule of naturalization,' and an argument can
be made that the Judicial branch has business poking its nose into that
situation. Likewise, there's a school of legal philosophy - a minority one to
be sure, but present nonetheless - that _Marbury v. Madison_ , upon which much
of the judicial power to constrain the other branches rests, represented an
inappropriate overreach by the Marshall court - a criticism first voiced by no
less a personage than Thomas Jefferson. See
<http://en.wikipedia.org/wiki/Marbury_v._Madison#Criticism> for example.

 _That you think this is okay is scary._

You have no idea what I think is OK. I'm telling you how it works now, not how
I'd like it to work.

~~~
wnight
I know the government isn't a monolithic entity - we rely on it being many
departments in many agencies all full of individual people each bringing their
own ethics into play or we'd simply have an automated dictatorship - Chinese-
Room style. The problem we're discussing is one governmental body trying to
remove peoples' recourse to appeal to the other branches of government,
specifically to avoid their work being audited.

By that tired "X needs Y, thus X implies Y for any interpretation of X"
argument the existence of bottled water makes drinking of rainwater fall under
federal control via the inter-state commerce act. It's kind of clever in one
sense but pointless in another.

And if you don't think this is okay you sure spend a lot of time "explaining"
it. We weren't having a cite contest but you sure tried to win, and in doing
so you don't miss my point so much as you try to overrule it with precedent.

We wouldn't have a system of carefully enumerated powers if we really didn't
care and they all just meant the same thing. In the end, yes, we still end up
governed. But in the same way people dislike trusting a single company with
all their services they dislike trusting a single governmental body with too
much power. And the power we really can't let anyone have is the power to
grant themselves more power. If there's a law, or combination of laws, that
read that way, it's a bug not a feature.

~~~
anigbrowl
I have a lot to say about it because I'm very interested in law, as well as
theories and philosophy of law. I feel these offer some important context that
is otherwise missing from these discussions, and that many people are unaware
of. I'm not trying to swamp your point, though.

~~~
wnight
I too am interested in law, but more with anthropological curiosity. My
thinking on governance is akin to the rape model though - all that matters is
if they're currently saying "No".

It looked like you were just saying that eminent people (Jefferson) had once
thought the courts too powerful among the branches of government and that this
had bearing on this situation via some "requires the powers to enforce their
mandate" argument.

Where were you going with it?

~~~
anigbrowl
Oh, just pointing out that quite eminent historical personages had different
opinions on the merits of judicial review, and that similar views still exist
today, although they're in a minority. I think people are inclined to assume
that The Way Things Are is much the same as How They're Supposed To Be, when
in fact the country might have developed quite differently very easily,
despite having started from the same constitutional beginning.

~~~
wnight
I've re-read your earlier post and I have to say that any view that requires
the supreme court to enact laws they find outside the scope of the
constitution is just baffling and tautologically wrong.

Marbury v. Madison didn't establish a power, it clarified the obvious. If the
law oversteps the bounds of the constitution the court has no power to enforce
it - their and congress' own power being derived from the constitution. Nobody
can be ordered by law to do something beyond the scope of law.

But above and beyond that, "The judicial power of the United States shall be
vested in [the supreme court]" is pretty clear - congress passes laws and the
courts enforce them. If a single entity was desired, it'd have been specified.

It doesn't mean the SC is the final arbiter of constitutionality, the people
are, but they certainly have the ability and duty to say no.

~~~
anigbrowl
I don't subscribe to the view that the Supreme Court has to allow laws
dramatically outside the constitution to stand; I said there exists such a
school of thought with some influential members, whether I agree or not. The
SC can't enact laws, that's what Congress does.

The Executive branch enforces the laws, per article II section 3 of the
Constutition. The Judicial branch adjudicates disputes, it does not enforce
anything.

The SC _is_ the final arbiter of constitutionality - as Justice Robert Jackson
said, it's not final because it's the SC, it's the SC because it's final.

------
rsync
This will open up our Monday morning schedule nicely if we no longer have to
maintain:

<http://www.rsync.net/resources/notices/canary.txt>

It would be our great pleasure :)

~~~
bashinator
Wouldn't this just be considered premeditated intent to violate the NSL gag
orders?

~~~
noonespecial
I think it works like this. They are not permitted to tell you that they
_have_ been served a warrant, but they are always free to tell you that they
_haven't_. If they should suddenly stop doing so, its up to you to draw your
own conclusions as to why. That seems reasonable, even in the context of the
madness of federal law.

As the text file says however, its always possible that they are being coerced
to lie and continue to say that they haven't when they have.

~~~
tlrobinson
I'm curious where the line is drawn.

What if they had a different file for every user?

What if one were to setup an independent site that reported the
presence/absence of these files on 3rd party sites, but explicitly pointed out
that the absence of the file, given the history of it's presence, meant there
was a high probability that a NSL was served to a specific site, for a
specific user...

~~~
sage_joch
I would be proud of their efforts to push back against an increasingly
Orwellian government.

------
graycat
As at

[http://wiki.monticello.org/mediawiki/index.php/Eternal_vigil...](http://wiki.monticello.org/mediawiki/index.php/Eternal_vigilance_is_the_price_of_liberty_%28Quotation%29)

attributed to Jefferson is

"The price of liberty is eternal vigilance."

So, US citizens need to resist the excesses of big gumment and, moreover, as
good news, can do so with a simple letter to their Congressman and Senators,
if enough citizens do that.

E.g., it was good to see SOPA/PIPA go down for the count after one punch from
a flurry of publicity and letters to Congress. I wrote all three of my guys
here in NY.

One way to get more such needed letters is more information on the Internet as
here on HN. While the EFF seems to do a lot of really good work, the legal
system is slow while a few 18 wheel trucks of letters to Congress can get
action as quickly as Congress can act which means in less than 24 hours. Two-
thirds of the House; two-thirds of the Senate; do not pass the White House, do
not collect the president's signature; done. We actually do live in a quite
responsive democracy; when enough citizens shout "frog" Congress jumps; and
Congress has the lion's share of the power.

For the power of more information, as at

<http://www.nysscpa.org/cpajournal/2003/1203/nv/nv2.htm>

"'Sunlight is the best disinfectant,'” a well-known quote from U.S. Supreme
Court Justice Louis Brandeis".

The NSL situation was so obviously unconstitutional that I have to believe
that the W efforts to push through that and similar stuff after 9/11 were
understood at the time to be unconstitutional but to give a window, until
cases were brought and the courts acted, to permit defending against anymore
9/11s.

Hopefully the FBI and the DoJ didn't do too much damage to honest US citizens
and did round up lots of wacko Jihaders dreaming of a harem of 72 virgins or
whatever.

------
jasonkolb
This is so awesome. Sometimes it feels like we're barreling towards a monarchy
with the executive branch wearing the crown. It made my afternoon to see that
there still are operational checks and balances still functioning. I would
love to see the judiciary start to rein in the executive branch.

------
bilbo0s
EFF just earned themselves a big bonus from me this year.

This is exactly what the nation needs. We should be pushing back against
government overreach where fundamental freedoms are concerned.

------
unclebucknasty
It shouldn't feel like a victory that the DOJ didn't prevail here.

Instead, it should feel like a loss that we are even having to argue this.
NSLs are flagrantly unconstitutional warrantless searches.

How far gone we are since 9/11. We gave up so many rights in virtually one
fell swoop, and now we are having to claw and fight to try to win back some of
our most basic protections and freedoms.

It's so bad that we win back a mere semblance of a basic right that should be
ours by the Constitution, and we feel like we won the lottery. I was pretty
excited myself until I had that realization.

Not to be a party-pooper.

------
csense
There's a lot of grousing in the tech community -- and HN in particular --
about all the threats to freedom, and for all the problems with the
government's responses to current issues like new technologies or terrorism.

There's legitimate substance here, but occasionally, the system actually works
exactly the way it's supposed to -- the judicial branch both asserting its
independence from the executive and striking down an overreaching action by
the latter.

In the actual ruling [1], the judge provides a very apt quotation from another
case: "Under no circumstances should the Judiciary become the handmaiden of
the Executive." This is _particularly_ important in matters of national
security. The tendency is for the executive branch to say the magic words
"national security" if those words tend to cause other people to let them do
whatever they want.

EDIT: Actually link to the ruling

[1] <https://www.eff.org/document/nsl-ruling-march-14-2013>

~~~
MartinCron
_the system actually works exactly the way it's supposed to_

The system actually works exactly the way it's supposed to far more often than
the cynics like to admit. The system isn't perfect, but I'm not about to stop
believing in justice just yet.

~~~
rayiner
I've always found reading Hamdi v. Rumsfeld to be soothing when I'm feeling
cynical:
[http://scholar.google.com/scholar_case?case=6173897153146757...](http://scholar.google.com/scholar_case?case=6173897153146757813&q=hamdi+v+rumsfeld&hl=en&as_sdt=2,33).

This is just a few years after 9/11, a year into the Iraq war, and Scalia,
joined by Stevens, dissenting because the majority didn't go _far enough_ in
protecting an accused terrorist from the Bush administration:

"Having distorted the Suspension Clause, the plurality finishes up by
transmogrifying the Great Writ—disposing of the present habeas petition by
remanding for the District Court to "engag[e] in a factfinding process that is
both prudent and incremental," ante, at 539. "In the absence of [the
Executive's prior provision of procedures that satisfy due process], ... a
court that receives a petition for a writ of habeas corpus from an alleged
enemy combatant must itself ensure that the minimum requirements of due
process are achieved." Ante, at 538. This judicial remediation of executive
default is unheard of. The role of habeas corpus is to determine the legality
of executive detention, not to supply the omitted process necessary to make it
legal. See Preiser v. Rodriguez, 411 U.S. 475, 484 (1973) ("[T]he essence of
habeas corpus is an attack by a person in custody upon the legality of that
custody, and ... the traditional function of the writ is to secure release
from illegal custody"); 1 Blackstone 132-133. It is not the habeas court's
function to make illegal detention legal by supplying a process that the
Government could have provided, but chose not to. If Hamdi is being imprisoned
in violation of the Constitution (because without due process of law), then
his habeas petition should be granted; the Executive may then hand him over to
the criminal authorities, whose detention for the purpose of prosecution will
be lawful, or else must release him."

His whole dissent, starting at 554, is worth a read.

------
fnordfnordfnord
Fuckin' A, man!

Please forgive me for that outburst. But this really puts a smile on my face.
I think I'll go give more money to the EFF. Maybe rename my daughter Susan.

~~~
tatsuke95
> _Maybe rename my daughter Susan._

Or just have another daughter...or son?

~~~
fnordfnordfnord
Maybe so, but if I had another son, I could never name him Sue.
<http://www.youtube.com/watch?v=-1BJfDvSITY>

------
koenigdavidmj
If this was stayed to allow it to go to the circuit appeals court, does it
only apply in the Ninth Circuit?

~~~
ChuckMcM
Yes, but hey once the Ninth Circuit throws it out Google and others might be
able to plausibly claim[1] they are no longer bound by the gag orders. If it
_does_ get by the Ninth circuit then it will go to the Supreme court. Sadly
the Supreme Court has been a bit to pro-government to my tastes lately.

[1] Google claims their headquarters are in California, they also move all
disputes into California, and so they could claim _for the purposes of this
statute_ they are a California company, even though their Incorporation papers
are in Delaware I believe. Not a lawyer so can't advise but it is my best
guess as to how they would position it.

~~~
Zimahl
_Sadly the Supreme Court has been a bit to pro-government to my tastes
lately._

I'd have to disagree. We've seen GPS tracking thrown out and other curbs on
invasions of privacy. This court seems very interested in broadly defining
privacy.

~~~
defen
IANAL but IIRC the GPS tracking was thrown out on narrow technical grounds -
without a warrant the cops can't trespass upon your vehicle to install the
tracker. They didn't say there was anything inherently wrong with the tracking
itself. In other words, it would be just as illegal for the cops to
surreptitiously attach an inert brick to your car without a warrant.

~~~
rayiner
That's not a narrow technical ground. Requiring involvement of the judiciary
versus not requiring it is a huge distinction.

~~~
defen
To clarify - they (in my recollection) didn't say anything about the
appropriateness of automated monitoring of people's movements in public
places. It's already ok for the cops to tail you without a warrant. But
automated vehicle-tracking via drones without a warrant (for example) is still
up in the air. No pun intended. It wasn't really a ruling in favor of (or
against) privacy.

~~~
eurleif
Seems to me like drones should be treated the same as thermal imaging cameras,
which the Supreme Court ruled required a warrant
(<http://en.wikipedia.org/wiki/Kyllo_v._United_States>) because they're not in
use by the general public, and thus there's a reasonable expectation of
privacy. But it was a 5-4 decision, and I guess drones might come into use by
the general public, so who knows.

------
geoffc
The judge is an America hero. The NSL's are Orwellian. I just donated to the
EFF, please do likewise.

------
will_brown
This is definitely a victory and kudos to the EFF, but keep this win in
perspective. The Court only ruled on the gag orders attached to the NSLs.

Therefore, as of now the executive can still issue an NSL, without a gag order
attached, which is still the equivalent of a warrant less search and seizure.
So there is still a larger fight ahead in getting the Courts to rule the NSLs
are Unconstitutional.

~~~
mey
Please read the EFF's press release closely. Specifically

In today's ruling, the court held that the gag order provisions of the statute
violate the First Amendment and that the review procedures violate separation
of powers. Because those provisions were not separable from the rest of the
statute, the court declared the entire statute unconstitutional.

There is are two separate issues, overstepping of executive authority and free
speech, all aspects of NSL are being declared. Not just the gag section. Now
there is a 90 day window for appeal, and I would expect the DoJ to appeal.

~~~
will_brown
>Please read the EFF's press release closely. Specifically

Thanks, I read the Court opinion.

Though I think you need to read my comment more specifically. There is nothing
inconsistent with my comment and your comment, I think you just got hung up on
the Court declaring the entire NSL law unconstitutional and I reference NSLs
being sent in the future without gag-orders.

You are correct there were two issues in the case, but the second issue "the
judicial review provision" was only related to the NSL nondisclosure
provision. See Page 1 paragraphs 20-22 of the Court Order (issue one and two
"collectively refered to as 'NSL nondisclosure provisions).

Therefore, Congress can reauthorize NSL without gag-orders, and they will bc
that is what Congress does when a new law is struck down they rewrite it to
comply with the Court ruling. Then the NSL without gag-order will be
challenged again and this time not under the 1st Amendment like the non-
disclosure provisions but under the 4th Amendment.

------
marze
Given the lack of seriously dangerous threats to the usa we've heard about
(and I assume we'd hear), I can't believe that just letting someone discuss a
request for information they receive would be cause any real danger.

~~~
InclinedPlane
To be fair there have been some seriously dangerous threats that have been
forestalled by government action.

Unfortunately though there is a widespread pattern of many of these folks
effectively being entrapped by the government, but there are a handful of
legitimate threats even so.

------
mpyne
Two thumbs up to the EFF on this one! I just hope it holds up at the Supreme
Court level and we can start restoring the checks and balances of our
republic.

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sp332
Anyone know which telco this really was?

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nmcfarl
The article says it’s likely Credo Mobile.

They're a fairly great little MVNO out of San Francisco. My wife, who is a
customer, loves their customer service. And they’ve spoken out against the
Patriot act - here’s tweet of theirs on the subject:
<https://twitter.com/CREDOMobile/status/4326145876>

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lsiebert
This ban is stayed so the 9th Circuit of Appeals can consider it.

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iamdave
Question: Does this mean NSLs are now subject to FOIA requests?

