Unconstitutional! but hold that thought…
Yes! A judge has just said (again) that NSLs are unconstitutional!! Well, duh, we knew that. But it’s good to have it on record, and with a civics lesson built right in.
Specifically, the automatic and unlimited gag order, and the indiscriminate way in which they’ve been handed out, offers the FBI an opportunity to suppress speech based on its content – broadly and indefinitely. That’s a violation of the first amendment. Later in the decision the judge apologizes for stating the obvious, but points out that our system of government is built on a separation and balance of powers. Congress may decide benightedly to hand its authority over to the executive, but they can’t make laws that do the same with the powers of the judicial branch. That’s a violation of the doctrine of the separation of powers, so NSLs are unconstitutional on those grounds. (The law, passed by Congress, says the executive doesn’t have to pay attention to those men in black dresses. Well … that’s not within their authority. Whoops!)
The decision (built around a John Doe – but not the John Doe of the library case, because the government dropped their gag order to avoid losing in court) – has been stayed pending appeal. So if you get an NSL, don’t tell anyone.
Meanwhile, in another matter, the Justice Department just told the FCC that they oppose net neutrality. Their pals at AT&T might suffer and that would hurt consumers because … uh … let’s see …. oh yeah! If AT&T couldn’t charge more, they couldn’t use that money to develop the Internet to its full potential and that would be bad for us. Screw libraries and universities, what do they contribute? Bunch of troublemakers.