Federal Judge Rules National Security Letters Unconstitutional

If you don't know about National Security Letters, you should.  They are the missives sent by the FBI to the institutions that hold your electronic information -- mainly banks, telecoms, ISP providers.  The gist is, provide us all the information you have about Mr. or Ms. X, and, by the way, you are not allowed to mention to anyone, most particularly Mr. or Ms. X, that you are doing this, and if you so much as breathe a word it is a felony and we will prosecute you.  So this is all done behind your back, without any ability on your part to object or even to know that it is going on.  (The existence of these NSLs is the principal reason why you should assume that all your electronic communications and bank transactions are monitored by the government at all times.  Use cash.)

The authority for this is found in the so-called USA PATRIOT Act, ignominiously signed by George W. Bush in 2001.  Needless to say, the sanctimonious Barack Obama has continued issuing the letters and enforcing the gag orders with the same frequency and enthusiasm as his predecessor.

I have always believed that when this issue reached the courts the statute would immediately go down, and particularly that the part prohibiting the recipient of the letter from telling anyone including the subject could not possibly survive First Amendment scrutiny.   But it has been a long twelve year wait.  Why?  Because not a single one of the weasels otherwise known as the banks, telecoms and ISP providers has stepped up to the plate to mount a challenge.  But now an unnamed telecom, backed by the Electronic Frontier Foundation, has finally taken on the government in a case that has gone to decision before Judge Susan Illston in the Northern District of California.  Result:  statute unconstitutional.  Among many reports on the internet, here is one from Wired.

A comment about the conduct of the banks, telecoms and ISPs in this matter:  All of them are highly "regulated" by the government.  Do you indulge in the illusion that "regulation" is no more than oversight by neutral, disinterested experts who assure that the evil capitalists do not overreach into exploitation of the weak and helpless?  What we have gotten for ourselves are sniveling government supplicants who do whatever the bureaucrats say and are completely willing to spy on the American public behind their backs in the effort to win bureaucratic favor for approval of the next merger or spectrum purchase or whatever.

Judge Illston has stayed the effectiveness of her injunction for 90 days.  After that, perhaps we will start to get some insight into the dark world of government surveillance on the public.  The Act was sold to the public as a response to terrorism.  What is the chance that these NSLs are limited to that arena?  I would say zero.  What percentage are actually part of the drug war as opposed to the war on terrorism?  My bet is the majority have nothing to do with terrorism.  Prove me wrong!  Use in the drug war may well be the least of the abuses.  Given the fallen character of all humans, what is the chance that no NSL has ever been used to investigate the guy that some FBI agent suspects of having an affair with his wife; or worse, to investigate some political opponents of the current administration.  Many human beings given this kind of power are just not capable of resisting these sorts of temptations.  Time will tell.

Meanwhile, Wired reports on a few abuses of the NSLs that have already come to light.  For example, from an IG report in 2007:

In 2007 a Justice Department Inspector General audit found that the FBI had indeed abused its authority and misused NSLs on many occasions. After 9/11, for example, the FBI paid multimillion-dollar contracts to AT&T and Verizon requiring the companies to station employees inside the FBI and to give these employees access to the telecom databases so they could immediately service FBI requests for telephone records. The IG found that the employees let FBI agents illegally look at customer records without paperwork and even wrote NSLs for the FBI.

Not much chance that the banks don't do the same thing.  How exactly are we better than say, East Germany in the Communist era?