Looks like Google's finally trying to exemplify their own "Don't Be Evil" motto. Props to them. Let's hope this action starts a trend.
Google has undertaken what appears to be a legal first: an open court challenge by a major Internet company to a warrantless electronic data-gathering technique used by the FBI.
The potential threat to the use of these letters by the government will be revealed as the case progresses. Common sense tells me that if Google is successful in court; a key underpinning could be removed from the legality of at least some other aspects of the Patriot Act as well -- even though NSLs predate the Patriot Act -- as long as clear standing can be successfully established. (of course this could also just be wishful thinking on my part)
Regardless, I think this is a BFD.
From the CNET article:
It's the first major company to openly challenge FBI's warrantless data-gathering known as national security letters, which authorize a gag order ruled unconstitutional by a federal judge.
FBI director Robert Mueller has called national security letters, which do not require a judge's approval, a "proven and useful investigative tool."
(snip)
The company asked U.S. District Judge Susan Illston in San Francisco last week to grant a "petition to set aside legal process" in response to a national security letter it received from the FBI.
National security letters allow FBI officials to send a secret request to Web and telecommunications companies requesting "name, address, length of service," and other information about users as long as it's relevant to a national security investigation. No court approval is required, and disclosing the existence of the FBI's request is not permitted.
There's a little more to the breadth and scope in regard to whom these 'national security letters' can be issued than what's in the quote above. In fact, every man, woman, child or place of business in the country -- private or public -- are subject to issuance of the letters.
In the Google case, all documents are currently under seal. Their attorney, Kevan Fornasero, said that was due to the fact that all petitions...
"... filed under Section 3511 [of Title 18] to set aside legal process issued under Section 2709 [of Title 18] must be filed under seal because Section 2709 prohibits disclosure of the legal process," according to Bloomberg, which was the first to report on the legal challenge.
Last month, the
Electronic Frontier Foundation (EFF) brought a
case (PDF) before Federal Judge Illston challenging the NSLs on behalf of a telecommunications company, the name of which has yet to be disclosed.
EFF had challenged the constitutionality of the portion of federal law that imposes non-disclosure requirements and limits judicial review of NSLs. Illston ruled that the NSL requirements "violate the First Amendment and separation of powers principles," and barred the FBI from invoking that language "in this or any other case." She did, however, give the Justice Department 90 days to appeal.
Looks like Google might have the right judge at the right time.
Google was also the first telecom to release summary statistics after the FBI issued the NSL request to the internet giant last month, saying at the time its own interpretation of the law was that the FBI's usage of the NSLs to "obtain anything else from Google" was not legal. The information sought by the FBI ranged from Gmail content to search queries to IP addresses to YouTube video selections.
The FBI's use of national security letters started before the Patriot Act. But their usage was only a fraction of what it has been since the PA went into effect back in 2001. The PA effectively broadened the scope of the letters beyond espionage cases, and also allowed agents all across the country to use them, instead of only agents in Washington D.C.
When Nicholas Merrill, who ran an Internet provider, challenged the gag order as unconstitutional, a federal judge in New York ruled the secrecy orders were an "unconstitutional prior restraint of speech in violation of the First Amendment," prompting Congress to rewrite portions of the law. The Internet Archive subsequently fended off an FBI NSL request for "any electronic communication transactional records" with the help of the ACLU and EFF.
Don't forget, the DoJ's own inspector general found what he called "serious misuse" of the letters back in 2007. In response, FBI Director Robert Mueller promised tighter internal controls. (which have yet to be implemented) But, at the same time, Mueller called the letters a... "proven and useful investigative tool."
Since 2006, the FBI has made upwards of 50,000 NSL requests. But there's really no way to quantify the full effect of those requests because each letter could hypothetically represent a request of a large number of documents.
Court "standing" seems to be the biggest impediment to challenging NSL usage. The government basically twisted the meaning of the term. Something about a recipient of an NSL cannot challenge the validity of the FBI's secret issuance of the letters because the recipient is not allowed to disclose the fact that the request was received.
The government seems to be taking 'legalese" to an art form.
Let's hope this case begins the process of reigning in or eliminating altogether this insidious, unchecked power in the hands of our government.
It would be a good overall start.