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Jun 04 2013

Judge Orders Google to Comply With NSLs

In a very strange development, a federal judge who previously declared the FBI’s use of National Security Letters unconstitutional has now ordered Google to comply with nearly 20 such NSLs and turn over the information requested — and to not talk about who the target is or what information was turned over.

A federal judge has ruled that Google Inc. must comply with the FBI’s warrantless demands for customer data, rejecting the company’s argument that the government’s practice of issuing so-called national security letters to telecommunication companies, Internet service providers, banks and others was unconstitutional and unnecessary…

The letters are used to collect unlimited kinds of sensitive, private information, such as financial and phone records and have prompted complaints of government privacy violations in the name of national security. Many of Google’s services, including its dominant search engine and the popular Gmail application, have become daily habits for millions of people.

In a ruling written May 20 and obtained Friday, U.S. District Court Judge Susan Illston ordered Google to comply with the FBI’s demands.

But she put her ruling on hold until the 9th U.S. Circuit Court of Appeals could decide the matter. Until then, the Mountain View, Calif.-based company must comply with the letters unless it shows the FBI didn’t follow proper procedures in making its demands for customer data in the 19 letters Google is challenging, she said.

But this is the same judge who ruled, less than three months ago, that the use of NSLs was inherently unconstitutional and that the FBI must stop using them. The Electronic Frontier Foundation praised Judge Illston for a thorough and well-reasoned ruling that actually enforced the 4th Amendment. What has changed in the meantime? I don’t know. Did the 9th Circuit Court of Appeals overturn her March ruling and remand the case? It seems unlikely that they would have done so that quickly.

NSLs are blatantly unconstitutional. They allow the FBI to send a letter to a telecom or internet provider and demand that they turn over the confidential records of their clients with no oversight whatsoever from a judge. The 4th Amendment clearly requires such a seizure to be done only pursuant to a warrant from a judge. And to make things worse, the company is then gagged from ever revealing that their client was the target of such a seizure.

10 comments

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  1. 1
    kantalope

    The judge probably got the secret letter letting her know the Constitution (except for the 2nd amendment) was a dead document and that she wasn’t allowed to tell anyone.

  2. 2
    gshelley

    Is there any way Google would be able to show the FBI didn’t follow proper procedure, or would that be something they can’t get access to because it is classified?

  3. 3
    Modusoperandi

    “The 4th Amendment clearly requires such a seizure to be done only pursuant to a warrant from a judge.”

    Sure, ordinarily, but it’s not a seizure. It’s a duplication of zeros and ones. So it’s okay.

  4. 4
    Ben P

    What has changed in the meantime?

    this

    After receiving sworn statements from two top-ranking FBI officials, Illston said she was satisfied that 17 of the 19 letters were issued properly. She wanted more information on two other letters.

    Seperately, I’ve read she reviewed them in camera (i.e. “in chambers”).

    That is, the most likely scenario is that the FBI provided her with the information behind their requests for documentation and she concluded that it established probable cause to seek the information. Although they are not precisely warrants, the same tenets would apply.

  5. 5
    Ben P

    Further, this

    She put that ruling on hold while the government appeals to the 9th U.S. Circuit Court of Appeals.

    I.e. She ruled that the statute allowing the National Security Letters was unconstitutional. The government asked her to stay the ruling pending appeal. She agreed. That means the law stands while it’s under appeal.

    The FBI issued 20 more NSL’s to google, Google refused to comply and the FBI filed a “Petition to Enforce National Security Letters.” She reviewed the backing for the letters, and consistent with her ruling that the order strking down the procedure was stayed, approved them as proper, except for the two she wanted further factual clarification on.

  6. 6
    eric

    the most likely scenario is that the FBI provided her with the information behind their requests for documentation and she concluded that it established probable cause to seek the information. Although they are not precisely warrants, the same tenets would apply.

    I would probably be okay with this. I don’t particularly like it, but the FBI personally explaining to a judge why they have to look at 20 sets of records is (grump grump) reasonable. Its certainly orders of magnitude better judicial oversight than the SCOTUS’ tacit approval of warrantless wiretapping via refusing to allow anyone standing to challenge it.

  7. 7
    Gregory in Seattle

    “What has changed in the meantime?”

    A visit by the Department of Homeland Security, and the reality of warrantless searches, detentions and renditions that might have been stopped had the courts done their constitutional duty 10 years ago.

  8. 8
    maddog1129

    Closer to 20.

  9. 9
    matty1

    If the Judge had to examine their reasons for wanting the information in detail and only approved those cases where she thought they had good reasons, which refusing two cases suggests, is this functionally equivalent to a warrant?

    Still not great since it requires the target to refuse to comply and the FBI appeal to land with a Judge who will review the details rather than defer to ‘Law Enforcement’ but better than nothing.

  10. 10
    Nick Gotts

    A related story in today’s Guardian – I think the Washington Post also has it.

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