Tuesday, December 16, 2008

Score one for civil rights

Today a U.S. federal court ruled that the government must undergo judicial review to place a gag order on National Security Letters that they issue. This is a minor victory for civil rights. It's not such a big victory, though, because the court upheld the statute, which had previously been overturned by a lower court.

You've probably never heard of National Security Letters. Let me sum them up in a nutshell: they're a way for the FBI to demand information from an entity, without judicial review or probable cause. All they have to do is mention the magic words "national security" and all of those nice protections that those founding father guys wrote into the constitution go out the window. To add insult to injury, they usually come with a gag order, which prevents the recipient from even telling anyone that they received a National Security Letter.

A typical use would be the FBI sending a letter to your phone or internet company, demanding their records on you. The phone company would be required by law to comply, and they would be barred from even telling you or anyone else that the information was requested. Their request would not require probable cause or judicial review. Notice that checks and balances are conspicuously absent from this situation.

Back in the day, starting in 1978, NSLs could only be used against foreign powers, or people reasonably suspected of being agents of foreign powers. However, after September 11, the government rushed to pass the horribly misnamed and horribly misguided USA PATRIOT Act, which greatly expanded the use of NSLs to cover not just foreign powers, but U.S. citizens.

Today's ruling still allows NSLs, but at least now requires that the FBI get a judge to approve gag orders. At least we're making progress.

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