- The Washington Times
Tuesday, March 19, 2013


In the wake of Sept. 11, many Americans cheerfully gave law enforcement the benefit of almost any doubt. It was “anything goes” if it meant stopping enemies from ever having an upper hand again. Unfortunately, the bureaucracy has been cheerfully willing to bypass judicial oversight on the way to obtaining unprecedented access to personal information of good Americans.

U.S. District Judge Susan Illston last week struck a blow for the Constitution, ordering the FBI to quit using “national security letters,” so called, to gather information from telecommunications firms without a warrant. According to the Justice Department, AT&T, Verizon, Comcast, Cox and others got demands for customer information 47,000 times in 2005 alone. In 97 percent of those cases, the letter imposed a gag order that prohibited the company from even discussing the incident or acknowledging the existence of the national security letter.

The Electronic Frontier Foundation, which fights for online privacy rights, argued the case on behalf of one of the firms, which can’t even be identified because of a gag order. The letter was based on a classified declaration from “a senior official with the FBI,” and it must be obeyed. Unless a judge has particular reason to suspect ill will on the part of that official, the mere assertion that disclosure of the existence of the letter would endanger national security “shall be treated as conclusive” under the law.

The Justice Department is so ruthless in sending the letters that it filed a separate lawsuit against the company that tried to challenge the letter in court. That went too far in Judge Illston’s view. “The Court finds that, as written, the statute impermissibly attempts to circumscribe a court’s ability to review the necessity of nondisclosure orders,” she wrote.

Corporate speech can be chilled just as an individual’s speech can be infringed. Because of the gag orders, telecommunications companies are unable to speak about their experience with a government policy. The orders are effectively permanent and cannot be realistically challenged, which gives the FBI unilateral power to kick anyone out of the public discussion of the issue. “Indeed, at oral argument, Petitioner was adamant about its desire to speak publicly about the fact that it received the [letter] at issue to further inform the ongoing public debate,” Judge Illston notes.

Forbidding someone from talking about a topic is the very definition of prior restraint, a form of censorship the Supreme Court in 1976 called the “most serious and the least tolerable infringement on First Amendment rights.”

Though cloaked in language of fighting terrorism, the government’s desire to snoop through emails and other electronic communications began long before the public had ever heard of Osama bin Laden. In 1997, for example, the FBI came up with a software program it called “Carnivore,” which scooped up millions of emails while purportedly going after a single suspect. This was much more of a power grab than a legitimate attempt to go after terrorism. Congress made attempts to rein in the use of such open-ended surveillance techniques, but restraint went out the window with passage and subsequent renewal of the Patriot Act.

Enough time has passed since Sept. 11 that reopening the debate on surveillance tactics is important, this time without the hysteria. It’s not too much to ask law enforcement agencies to obtain a warrant before wide-scale snooping. The Constitution guarantees no less.

The Washington Times

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