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The US District Court of Northern California has ruled that the some of the FBI's use of national security letters (NSLs) is unconstitutional.  These NSLs are issued without judicial review to force telecommunications companies to turn over users' records while prohibiting the providers from even revealing that the letters have been issued.

As the ruling by US District Judge Susan Illston states, in a previous case courts found NSLs to generally be constitutionally acceptable but allowed their use with compelled non-disclosure only if: 1) the FBI certifies that disclosure might result in a known (enumerated) harm to a terrorism investigation; 2) that a court can modify the standard non-disclosure order unless disclosure is reasonably likely to harm an investigation; and 3) that the FBI has the burden of proof to satisfy the first two criteria.

In its usual lawyerly manner - thus reinforcing my opinion of Eric Holders' status as the worst attorney general since Alexander Palmer - the government argued that 1) the court lacked jurisdiction; 2) but even if the court had jurisdiction, the FBI is following the court's restrictions (requiring the court to take its word for that).  The current court rejected the administration's arguments, finding that the government had not shown that it is generally necessary to prevent telecommunications concerns from publishing even the fact that they received a NSL.

Certainly, the issue here seems to be narrow - only whether the telecommunications providers can publicly acknowledge the bare fact that they've received a letter, without giving any details.  However, I would expect that the government will appeal the court's finding as it has in all similar judicial setbacks.  I also hope that the Electronic Frontier Foundation can continue its fight against the unrelenting erosion of civil liberties protections which has occurred in the past twelve years.

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