As the so-called USA Freedom Act was making its way through Congress, we warned that it would do nothing to substantially curtail federal surveillance and could actually make things worse.

It made things worse.

A federal judge has “ruled” that provisions relating to national security letters (NSLs) – as amended by the USA Freedom Act – no longer violate the Constitution.

Federal law enforcement agencies such as the FBI issue these administrative subpoenas with no judicial oversight to gather information for “national security purposes.” NSLs require the entity served to provide any information requested and they usually include gag orders prohibiting the recipient from revealing any information about the order. They can even prohibit the recipient from consulting with an attorney.

In 2008, the Washington Post reported widespread abuse of national security letters by the FBI.

“The FBI has increasingly used administrative orders to obtain the personal records of U.S. citizens rather than foreigners implicated in terrorism or counterintelligence investigations, and at least once it relied on such orders to obtain records that a special intelligence-gathering court had deemed protected by the First Amendment, according to two government audits released yesterday.”

The gag orders have proven particularly contentious because they prohibit service providers from informing their customers, or the general public, that the federal government has requested information. The Electronic Frontier Foundation sued on behalf of two clients who received NSLs. EFF argued that the gag order violates the First Amendment and that “the limited judicial review provisions essentially write the courts out of the process.”

A federal judge agreed in 2013. But the feds appealed to the Ninth Circuit. The appellate court found that changes made in the USA Freedom Act required a review by the district court. This time around, the lower court found that the changes in federal law make NSLs constitutional.

“We are extremely disappointed that the superficial changes in the NSL statutes were determined to be good enough to meet the requirements of the First Amendment,” said EFF Staff Attorney Andrew Crocker. “NSL recipients still can be gagged at the FBI’s say-so, without any procedural protections, time limits or judicial oversight. This is a prior restraint on free speech, and it’s unconstitutional.”

This represents yet another example of federal courts failing to limit the federal government. This federal judge just affirmed federal law enforcement’s power to issue their own search warrants, with no judicial oversight, and gag the recipients. Nevermind that whole probable cause, supported by oath or affirmation thing in the Fourth Amendment. Federal courts have long held that you and I have no “expectation of privacy” when it comes to the information the FBI obtains from Internet and telecommunication service providers.

It also demonstrates how federal “fixes” advertised as reining in the federal surveillance state do no such thing. When Congress acts, you can generally assume it is expanding the federal government’s power to spy on you.

The federal government will never limit its own power.

This is why we take a state-based strategy at the Tenth Amendment Center. Placing strict limits on surveillance at the state level also limits surveillance at the federal level. Federal agencies depend on states to gather information and share it through Fusion Centers and the “Information Sharing Environment.”  States can also put the brakes on federal surveillance by refusing to provide material support and resources to agencies engaging in warrantless spying.

Endless attempts to get the federal government to limit itself falls withing that well-known definition of insanity – trying the same thing over and over again and expecting a different result. It’s time for a different approach. For more information on how to fight the federal spying through state action, click HERE.

Mike Maharrey

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