Ramblings of an old Doc



Judge Susan Illston has ruled that the FBI’s pervasive use of National Security letters which were created by the Patriot Act is unconstitutional.

In doing so, she stated that their use (tens of thousands per year) is too broad. Fully 97% of them are issued without the recipients’ names are never mentioned.

"This pervasive use of nondisclosure orders, coupled with the government's failure to demonstrate that a blanket prohibition on recipients' ability to disclose the mere fact of receipt of an NSL is necessary to serve the compelling need of national security, creates too large a danger that speech is being unnecessarily restricted.”

- Judge Susan Illston, U.S. District Judge, San Francisco.

She also ordered the government to cease enforcing the gag provision in any other cases, but stayed the order for 90 days to allow the government to appeal to the Ninth District Circuit Court of Appeals.

This was in response to the EFF suit on behalf of Telcom against the government’s use of the NSL statute which it felt was unconstitutional. This came after the Justice Department sued Telcom for challenging the constitutionality of these ultra-secret NSL’s and the gag orders.

To be more specific, these NSLs are used to get detailed information on Americans’ finances and communications without oversight from a judge. The FBI has issued hundreds of thousands of NSLs and been reprimanded for abusing them — though almost none of the requests have been challenged by the recipients.

Telcom took the (frankly) ballsy step of denying the government’s right to the documents by attacking the constitutionality of the NSL provisions of the Patriot Act. Specifically they argued that the statute violates the First Amendment.

“NSLs are written demands from the FBI that compel internet service providers, credit companies, financial institutions and others to hand over confidential records about their customers, such as subscriber information, phone numbers and e-mail addresses, websites visited and more.

The lack of court oversight raises the possibility for extensive abuse of NSLs under the cover of secrecy, which the gag order only exacerbates. 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.”

- http://www.wired.com/threatlevel/2012/07/doj-sues-telecom-over-nsl/

This issue brings to a head two important issues. The government is charged to protect and defend us and the Constitution. Trying to do so however, must be done in a process which protects the individual while doing so in a secret manner. That usually is inherently impossible. These inherent contradictions can only be adequately addressed by a free Judiciary. The government must not be allowed to destroy our freedoms by their efforts to defend them, even if the motive is pure. To be honest, that is the only way the terrorists could destroy the United States.

Thank you, Judge Illston.





on Mar 16, 2013

Agreed. But how much do telephony companies make for this request or is it free...? Either I'm wrong or misunderstood where I heard that they charge LE (Law Enforcement) for said info. Just trying to show how are telecom are just greedy for money versus protecting consumers rights...

on Mar 16, 2013

Thank goodness there are judges who still believe they should abide by their oath of office.

Senators... not so much.

on Mar 16, 2013

This seems more like a breach of the Fourth Amendment and its protections against unreasonable search and seizure than the First Amendment and its freedom of speech protections.

on Mar 16, 2013

A temporary setback only, I believe, one that will be mended soon. 

on Mar 17, 2013

Yeah, by the use of an exectutive order.

on Mar 17, 2013
Some USA citizens, which are designated "enemy combatants" by (unknown somebodies in) the executive branch, are targeted for death via drones (and stealth-mode assets?). So much for "... life, liberty, and [property] the pursuit of happiness..." aspect of the constitution / founding documents. I'm very glad a US District Judge (yea California!) ruled as she did re: the FBI's balk-mailing of so-called 'national security letters.' It is downright scary how far the USA has decayed. In the Eisenhower era, the US military was a defensive force, a (mostly) volunteer force, a military primarily made up of "civilian-citizen-soldiers. President Eisenhower, former Commander in Chief of the Allied Armies in WW2 warned us with words which still haunt us today: "Beware of the military-industrial complex." Now our military has 'professional soldiers, a distinct class of people from the general population, and dedicated to "doing my job." Is this the same as saying "I was just following orders? The incredible abuses of raw power unleashed by the Cheney-junior Bush administration, and (sadly) continued by President Obama shows just how little regard our country's founding documents currently receive. The massive imperial money making machine (USA, Inc.) is shredding our cherished freedoms. Did you notice the canary in the cage is dead? I'm very happy a judge in California is challenging the FBI's bulk-mailed security letters. I'm happy a congresswoman in Massachusetts is probing big banking abuses. There is hope. (I hope.)
on Mar 17, 2013

Is this the same as saying "I was just following orders?

Perhaps for a tiny few.


Now our military has 'professional soldiers, a distinct class of people from the general population, and dedicated to "doing my job."

Don't agree with this, Elana. Might be true for a small minority, but not for the vast majority.


on Mar 17, 2013
When I referred to the professional class of military personnel, I was referring to the specialized, highly trained folks, the elite types like seals, airborne rangers, etc. The intent of my post was to suggest that the erosion of personal, individual freedoms goes back to a fundamental change in, if you will, the American Psyche. Many people seem to be opting for what they perceive as as 'temporary' restrictions needed to keep us safe during the 'war' on terrorism. They really believe that when the war is over, their freedoms will be returned. Like Ben Franklin said (paraphrase from memory) a people who trade their freedom for security deserve neither. Remember color coded threat levels being broadcast a few years ago? In an environment of imminent threat of attack from 'somewhere' it seems easier to compromise (and even negate) basic freedoms in favor of protective measures. And highly specialized soldiers are necessary instruments in projecting military power across oceans and into regions of the globe far removed from our shores. National guard soldiers can do a great deal, but they are not elite troops. I wasn't clear in previous post, and painted with too wide a brush. Guess I'm not elite, lol.
on Mar 17, 2013

I was referring to the specialized, highly trained folks, the elite types like seals, airborne rangers, etc.

Can't agree, Elana. To get to selection and acceptance into units like those, "just doing my job" would never cut it. There has to be tremendous, deep, honest motivation and even then, it might not be enough because of the physical demands. I honestly believe you're short changing those folks.