Judge orders Google to comply with FBI's secret NSL
demands
A federal judge tells the company to comply with the
FBI's warrantless National Security Letter requests for user details, despite
ongoing concerns about their constitutionality.
by Declan McCullagh
May 31, 2013 6:00 AM PDT
A federal judge has ruled that Google must comply with
the FBI's warrantless requests for confidential user data, despite the search
company's arguments that the secret demands are illegal.
CNET has learned that U.S. District Judge Susan Illston
in San Francisco rejected Google's request to modify or throw out 19 so-called
National Security Letters, a warrantless electronic data-gathering technique
used by the FBI that does not need a judge's approval. Her ruling came after a
pair of top FBI officials, including an assistant director, submitted
classified affidavits.
The litigation taking place behind closed doors in
Illston's courtroom -- a closed-to-the-public hearing was held on May 10 --
could set new ground rules curbing the FBI's warrantless access to information
that Internet and other companies hold on behalf of their users. The FBI issued
192,499 of the demands from 2003 to 2006, and 97 percent of NSLs include a
mandatory gag order.
It wasn't a complete win for the Justice Department,
however: Illston all but invited Google to try again, stressing that the
company has only raised broad arguments, not ones "specific to the 19 NSLs
at issue." She also reserved judgment on two of the 19 NSLs, saying she
wanted the government to "provide further information" prior to
making a decision.
NSLs are controversial because they allow FBI officials
to send secret requests to Web and telecommunications companies requesting
"name, address, length of service," and other account 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 secret
requests is not permitted.
Because of the extreme secrecy requirements, documents in
the San Francisco case remain almost entirely under seal. Even Google's identity
is redacted from Illston's four-page opinion, which was dated May 20 and
remained undisclosed until now. But, citing initial filings, Bloomberg
disclosed last month that it was Google that had initiated the legal challenge.
While the FBI's authority to levy NSL demands predates
the Patriot Act, it was that controversial 2001 law that dramatically expanded
NSLs by broadening their use beyond espionage-related investigations. The
Patriot Act also authorized FBI officials across the country, instead of only
in Washington, D.C., to send NSLs.
EFF's separate challenge
Illston, who is stepping down from her post in July, said
another reason for her decision is her desire not to interfere while the Ninth
Circuit Court of Appeals is reviewing the constitutionality of NSLs in an
unrelated case that she also oversaw.
In that separate lawsuit brought by the Electronic
Frontier Foundation on behalf of an unnamed telecommunications company, Illston
dealt a harsh blow to the bureau's use of NSLs.
EFF had challenged the constitutionality of the portion
of federal law that imposes nondisclosure 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." But she gave the
Obama administration 90 days to appeal to the Ninth Circuit, which it did on
May 6.
Neither the FBI nor Google responded to requests for
comment. (In March, Google began publishing summary statistics about NSLs it
received, making it the first major Internet company to do so.)
These aren't the first cases to tackle whether NSLs,
including gag orders, are constitutional or not. In a 2008 ruling (PDF), the
Second Circuit Court of Appeals handed down a mixed decision.
A three-judge panel of the Second Circuit took an odd
approach: the judges agreed that the "challenged statutes do not comply
with the First Amendment" but went on to rewrite the statute on their own
to make it more constitutional. They drafted new requirements, including that
FBI officials may levy a gag order only when they claim an "enumerated
harm" to an investigation related to international terrorism or
intelligence will result.
Illston's decision in the Google NSL case said that the
FBI had submitted "classified" evidence "intended to demonstrate
that the 19 NSLs were issued in full compliance with the procedural and
substantive requirements imposed by the Second Circuit."
That includes classified declarations submitted by
Stephanie Douglas, executive assistant director of the FBI's national security
branch, and Robert Anderson, assistant director of the counterintelligence
division at FBI headquarters.
A 2007 report by the Justice Department's inspector
general found "serious misuse" of NSLs, and FBI director Robert
Mueller pledged stricter internal controls. Mueller has also called the
investigative technique invaluable.
Update 10 a.m. PT: In a previously unreported lawsuit in
Manhattan, the Justice Department has asked a judge to grant its "petition
to enforce" a NSL that the FBI sent to Google for confidential user data.
The search company is fighting the request.
Comments
Post a Comment