from the star-chambers-for-the-common-person dept.
A federal appeals court is giving the Federal Bureau of Investigation a big boost when it comes to secretly investigating national security affairs. The 9th US Circuit Court of Appeals on Monday upheld federal rules prohibiting companies from promptly disclosing to customers that the FBI is demanding a user's private data with a National Security Letter (NSL).
The FBI annually issues thousands of so-called NSLs to ISPs, financial institutions, and telephone companies. A judge's signature is not required, and targets of NSLs cannot challenge them because they don't know they exist.
The Electronic Frontier Foundation, on behalf of Cloudfare and CREDO Mobile, brought a challenge to the gag orders under the First Amendment. They argued that the gag orders burdened the speech of companies that receive them. A federal judge in 2013 agreed and declared NSLs unconstitutional for that reason.
In the aftermath, however, Congress and the Justice Department slightly tinkered with the gag rule. A lower court and now a federal appeals court have concluded that the revised gag rule does not infringe the First Amendment rights of companies that receive NSL user-data requests.
Under the revised silencing protocol, the FBI must review the need for the nondisclosure requirement of an NSL three years after the initiation of a full investigation and at the closure of the investigation. The bureau must terminate the nondisclosure requirement when the investigation is closed or when the "facts no longer support nondisclosure," a lower court had ruled (PDF).
A federal appeals court on Monday upheld that ruling and said that because of those alterations, the nondisclosure requirement "does not run afoul of the First Amendment" (PDF).
Source: Ars Technica
(Score: 2, Insightful) by arcz on Wednesday July 19 2017, @07:20AM (1 child)
The Ninth Circuit is cucked. Did you expect them to defend your constitutional rights? Hahahaha.
Hopefully the Supreme Court restores our democracy. Gag orders are fundamentally incompatible with democracy. We currently live under a non-democratic rule.
(Score: 0) by Anonymous Coward on Wednesday July 19 2017, @07:24AM
They just don't realize it because they are too busy belittling 'the other team' thinking their shit smells any less stank.
Must be spraying a lot of febreeze to cover up the smell wafting off your own.
(Score: 2) by chromas on Wednesday July 19 2017, @08:41AM (4 children)
How does that work? Doesn't someone have to receive the letter?
(Score: 0) by Anonymous Coward on Wednesday July 19 2017, @10:35AM (3 children)
The target does not get the NSL. The tech provider (ISP, email host, w/e) gets it. The whole issue is about providers being allowed to notify targets.
(Score: 0) by Anonymous Coward on Wednesday July 19 2017, @11:23AM (2 children)
What about providers that continuously post "As of today (date) we have not received any NSLs"...until one day they stop updating the post.
Forgot what this is called, maybe something "canary" (reference birds taken into coal mines as early warnings of poison gas).
(Score: 0) by Anonymous Coward on Wednesday July 19 2017, @02:24PM (1 child)
I've heard NSLs can be constructed in such a way that a warrant canary violates the NSL. The disappearance of a warrant canary could constitute contempt of court depending on how far the judge is in the pocket of the lizard people. However, the EFF notes that if challenged in court, the court will likely not uphold a party being coerced to continue publishing a false warrant canary.
https://www.eff.org/deeplinks/2014/04/warrant-canary-faq [eff.org]
(Score: 2) by bob_super on Wednesday July 19 2017, @05:13PM
The legal argument about compelling false speech in warrant canaries has not been tested in court.
But threatening to take this to the current supreme court would certainly cause the executive to stall and delay, since they know they can't win.
There is a case outstanding about revealing the number of NSLs, without being more specific. The current rule with brackets is on pretty shaky ground.
(Score: 2, Insightful) by Anonymous Coward on Wednesday July 19 2017, @12:15PM
Strange ruling,
yes your first amendment rights are being violated, but since it is now temporary it's not a problem? Also, it looks like it's defined to be as temporary as a temporary tax, since the party issuing the gag is also the party that determines for how long its needed.
The whole concept of this thing smells rotten to the core.
I also wonder, if the ISP just says, I'm sorry, we can't comply with this gag order and we can't tell you why. Hinting some other agency has gagged them, how would that go ...
(Score: 1, Informative) by Anonymous Coward on Wednesday July 19 2017, @01:38PM (1 child)
The US is not a free country, nor is it a democracy.
The FBI is the American equivalent of the Gestapo. I speak from experience.
If you think you have any "rights" under the law or the Constitution, you're kidding yourself. If the government wants to do something to you, they will,
and you are powerless to stop them.
The truth is not pretty. But it's still the truth.
(Score: 0) by Anonymous Coward on Wednesday July 19 2017, @02:30PM
And tell me, Mr. Anderson, what good is a phone call if you're unable to speak?…