Court Rules Gag Provisions On NSL Letters Unconstitutional, Enjoins Their Issue

Judge Susan Illston of the District Court for the Northern District of California declared unconstitutional parts of the statutes that authorize NSL letters and the requirement that the recipient stay silent about them.  The case comes from a challenge to the FBI’s authority in a letter sent to an unnamed telecommunications company.  The Electronic Frontier Foundation helped in representing the petitioner. 

Judge Illston reviewed Supreme Court precedent on prior restraint issues and the case of John Doe, Inc. v. Mukasey, 549 F.3d 861 (2d Cir. 2008).  In that case, the Second Circuit found violations of the First Amendment but interpreted the circumstances of the case along with the language of the statute essentially maintain the status quo.  Judge Illston was having none of it, concluding “that the NSL provisions suffer from significant constitutional defects which cannot be remedied in this forum.”  She enjoined the Government from issuing NSLs and enforcing the nondisclosure provisions in this or any other case.  The order was stayed for 90 days to give the Government time to appeal to the Ninth Circuit.  That is almost guaranteed. 

The opinion is here, courtesy of Professor Steve Vladeck’s Lawfare blog.  Discussion is available in Wired and Slate.  [MG]