Michael Jay Lissnerhttps://michaeljaylissner.com/2014-10-08T00:00:00-07:00In Re NSL2014-10-08T00:00:00-07:00Mike Lissnertag:michaeljaylissner.com,2014-10-08:posts/2014/10/08/in-re-nsl/<p><img alt="Kurt Opsahl for EFF" src="https://michaeljaylissner.com/images/in-re-nsl/kurt.jpeg" /></p>
<p><em>Kurt Opsahl for <span class="caps">EFF</span></em></p>
<p>I spent the morning today in court watching <a href="https://www.eff.org/about/staff/kurt-opsahl">Kurt Opsahl</a> from the <a href="https://www.eff.org">Electronic Frontier Foundation</a> deliver oral arguments for <em>In Re National Security Letters</em>, <span class="caps">AKA</span> <em>Under Seal v. Eric Holder</em>. I had originally planned on attending this as a lay person holding a smart phone camera and taking pictures, but soon after I filed <a href="http://www.ca9.uscourts.gov/news_media/camera_application_form/">an application to take photos</a>, I became <em>the</em> media “pool”, meaning I was the one guy responsible for taking photos and distributing to the press after the fact. </p>
<p>Well, I’m no photographer, but since nobody else applied to take photos, here are the photos that I took:</p>
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<p>I hereby release these as public domain photos. If you want to give me attribution, great. If not, no worries. </p>
<h2 id="some-comments-on-nsls-and-the-proceedings">Some Comments on NSLs and the Proceedings</h2>
<p>The district court previously found that <a href="https://en.wikipedia.org/wiki/National_security_letter">National Security Letters (NSLs)</a> violate the First Amendment and today the government appealed that finding with a variety of interesting claims. Probably my favorite was when the government claimed that the gag orders that typically apply to NSLs were necessary because without them the <span class="caps">FBI</span> wouldn’t be able to use NSLs as an investigative tool anymore. </p>
<p>Matt Zimmerman, the attorney when this case was in the district court, put it well:</p>
<blockquote class="twitter-tweet" lang="en"><p>Gov't: “<span class="caps">FBI</span> couldn't function” if it had to review the appropriateness of <span class="caps">NSL</span> gags. <a href="https://twitter.com/hashtag/nsl?src=hash">#nsl</a> <a href="https://twitter.com/hashtag/wow?src=hash">#wow</a></p>— Matt Zimmerman (@zim) <a href="https://twitter.com/zim/status/519899839526490113">October 8, 2014</a></blockquote>
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<p>The interesting thing here is that it’s probably true. If the gag orders were removed, the thousands of National Security Letters that the government issues each year would need more review, making it so that the <span class="caps">FBI</span> no longer had an extra-judicial backdoor into investigations. The <span class="caps">FBI</span> wouldn’t want that.</p>
<p><img alt="Judge" src="https://michaeljaylissner.com/images/in-re-nsl/judge.jpeg" /></p>
<p>There were a million other arguments made that I’ll leave to the lawyers to discuss, but all in all it looked pretty good for <span class="caps">EFF</span> and I think folks are feeling confident. From here, it’s now up to the panel of judges to issue their decision. My bet is that regardless of what the decision says, this one will be appealed to the Supreme Court. Perhaps they’ll need a photographer too.</p>