Verbosities

Threat Level - Wired Blogs

Judge Marrero found, in a 106 page opinion, that the gag order provisions couldn't be struck down without affecting the rest of the statute so he found that the entire NSL provision was unconstitutional. He also stuck down a provision that prescribed the standards courts should use in judging the FBI's arguments for keeping gag orders. Marrero wrote that Congress had overstepped its bounds in setting out those standards.

The judge also made it clear that the scope of the FBI's powers, which were not challenged by the ACLU, concerned the court:

But as powerful and valuable it may be as a means of surveillance and as crucial the purpose it serves, the NSL nevertheless poses profound concerns to our society, not the least of which, as reported by the OIG, is the potential for abuse its employment. Through the use of NSLs, the government can unmask the identity of internet users engaged in anonymous speech in online discussions. It can obtain an itemized list of all the emails sent and received by the target of the NSL, and it can then seek information on individuals communicating with that person. It may be even be able to discover the websites an individual has visited and queries submitted to search engines.

This is the second time the NSL statute has been struck down in this case. After the last decision, the Administration loosened the gag order provision, which in the original Patriot Act, could not be contested and lasted in perpetuity.

I guess when Bush tells you to STFU forever and ever, that might be able to be challenged in court. Of course, watch the Kafkaesque legal teams at the DOJ get this one tossed on appeal just like the FISA suit, under the "if you can't prove we fucked you, you're not able to sue us" legal doctrine. Beautiful stuff.

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