A federal judge in California defied her own ruling issued last year by enforcing highly secretive National Security Letters (NSLs), the use of which she had previously ruled to be unconstitutional, according to recently unsealed documents.
Previously, U.S. District Judge Susan Illston ruled that NSLs unconstitutionally infringe on free speech due to the built-in gag order and ordered the government to stop using them.
Illston also ordered the government to stop enforcing the gag order in cases where an NSL had already been issued, though she stayed the order for 90 days to allow the government to appeal the ruling.
The government appealed the ruling to the U.S. 9th Circuit Court of Appeals and continued to enforce NSLs complete with gag orders against the same case involved in the Illston ruling, Wiredpoints out in a new in-depth report.
Illston even contradicted her own ruling by enforcing NSLs in the same court proceedings that challenged them, reasoning that she should maintain the status quo until the 9th Circuit issues its ruling.
“[G]iven that the constitutionality of the statute as written is under review at the Ninth Circuit, and given that petitioner did not raise arguments specific to the two NSLs at issue why the nondisclosure orders should not be enforced – the Court DENIES the petition to modify or set aside the two NSLs,” Illston wrote in her ruling.
After the unnamed telecom involved in the case challenged the NSL they received in 2011, the Department of Justice sued the company.
The Justice Department claimed that the telecom was actually breaking the law by challenging the letter, even though it is perfectly legal for the NSLs to be challenged.
After Illston ruled that NSLs and their gag orders are unconstitutional, the government just filed a new complaint trying to get the telecom to hand over the information sought in the original NSL.
The Electronic Frontier Foundation (EFF), which is representing the telecom involved in the original case Illston ruled on last year, told Wired that they were shocked by the government’s most recent actions.
“The government went ahead and tried to litigate the exact same thing they had just lost,” said Matt Zimmerman, an EFF staff attorney.
“Just like an Energizer bunny, the government continues to go forward even though they lost,” he said.
Zimmerman said that the case is especially noteworthy because it shows how the government uses NSLs.
“They first try the no-court avenue and then when someone pushes back, they say okay we’ll drop that no-court action and go to court and obtain it another way,” Zimmerman said.
Despite the legal challenges from three companies facing the government’s NSLs in California, the government has not dropped the requests.
Wired cites Zimmerman’s point that this approach is quite odd given the government’s argument that the challenges by the companies actually harm national security.
“If this were truly the case, [Zimmerman] says, the government would drop the NSLs and obtain the information it needs quickly through other means,” Wired reports.
The three different companies, including Google, now await the 9th Circuit’s ruling on the constitutionality of NSLs.
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