This photo shows the Metropolitan Correctional Center Tuesday, Dec. 18, 2012, in Chicago. Two convicted bank robbers used a knotted rope or bed sheets to escape from the federal prison window high above downtown Chicago early Tuesday, a week after one of them made a courtroom vow of retribution, to federal judge. The escape occurred sometime between 5 a.m. and 8:45 a.m. when the inmates were discovered missing, Chicago Police Sgt. Mark Lazarro said. Hours later, what appeared to be a rope, knotted at six-foot intervals, could be seen dangling into an alley from a window of the Metropolitan Correctional Center approximately 20 stories above the ground. (AP Photo/M. Spencer Green)
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This photo shows the Metropolitan Correctional Center Tuesday, Dec. 18, 2012, in Chicago. Two convicted bank robbers used a knotted rope or bed sheets to escape from the federal prison window high above downtown Chicago early Tuesday, a week after one of them made a courtroom vow of retribution, to federal judge. The escape occurred sometime between 5 a.m. and 8:45 a.m. when the inmates were discovered missing, Chicago Police Sgt. Mark Lazarro said. Hours later, what appeared to be a rope, knotted at six-foot intervals, could be seen dangling into an alley from a window of the Metropolitan Correctional Center approximately 20 stories above the ground. (AP Photo/M. Spencer Green)
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A rope dangles from a window on the back side of the Metropolitan Correctional Center Tuesday, Dec. 18, 2012, in Chicago. Two convicted bank robbers used a knotted rope or bed sheets to escape from the federal prison window high above downtown Chicago early Tuesday, a week after one of them made a courtroom vow of retribution, to federal judge. The escape occurred sometime between 5 a.m. and 8:45 a.m. when the inmates were discovered missing, Chicago Police Sgt. Mark Lazarro said. Hours later, what appeared to be a rope, knotted at six-foot intervals, could be seen dangling into an alley from a window of the Metropolitan Correctional Center approximately 20 stories above the ground. (AP Photo/M. Spencer Green)
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FILE - In this May 22, 2012 file photo, Noah, left, and Layla prowl their enclosure at Stump Hill Farm in Massillon, Ohio. A federal judge upheld Ohio's new restrictions on exotic animals Thursday, Dec. 20, 2012 after several owners sued the state over the law. Current owners who want to keep their animals must obtain the new state-issued permit by Jan. 1, 2014. They must pass background checks, pay fees, obtain liability insurance or surety bonds, and show inspectors that they can properly contain the animal and care for it. (AP Photo/Mark Duncan, File)
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FILE - In this July 23, 2012 file photo, James E. Holmes appears in Arapahoe County District Court in Centennial, Colo. Lawyers for Holmes have indicated their client might plead not guilty by reason of insanity. In court documents made public Friday, March 1, 2013, James Holmes' attorneys want the judge to declare portions of the state's insanity defense laws unconstitutional. The filings say the laws in which a defendant may waive their right to remain silent and reveal confidential medical information should be unconstitutional in cases involving the possibility of execution. (AP Photo/Denver Post, RJ Sangosti, Pool, File)
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Attorney General Eric Holder spoke before the Senate Judiciary Committee Wednesday to urge Congress to act on gun control legislation. He also said the recent budget cuts brought on by the sequester could hamper national security. (March 6)
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This screen shot shows the website of the U.S. Sentencing Commission after it was hijacked by the hacker-activist group Anonymous, early Saturday, Jan. 26, 2013, to avenge the death of Aaron Swartz, an Internet activist who committed suicide. The website of the commission, an independent agency of the judicial branch, was replaced with a message warning that when Swartz killed himself two weeks ago "a line was crossed." (AP Photo)
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Malian troops man an observation post outside Sevare, some 620 kms (400 miles) north of Mali's capital Bamako Thursday, Jan. 24, 2013. One wing of Mali's Ansar Dine rebel group has split off to create its own movement, saying that they want to negotiate a solution to the crisis in Mali, in a declaration that indicates at least some of the members of the al-Qaida-linked group are searching for a way out of the extremist movement in the wake of French airstrikes. (AP Photo/Jerome Delay)
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French soldiers fill up their tank at a local petrol station in Sevare, some 620 kilometers (385 miles) north of Mali's capital Bamako, Friday, Jan. 25, 2013. The French currently have some 2,400 forces in the country and have said that they will stay as long as needed in Mali, a former French colony. However, they have called for African nations to take the lead in fortifying the Malian army's efforts. (AP Photo/Jerome Delay)
Judge rules secret FBI letters unconstitutional
SAN FRANCISCO (AP) — A federal judge has ruled that the FBI's practice of issuing so-called national security letters to banks, phone companies and other businesses is unconstitutional, saying the secretive demands for customer data violate the First Amendment.
The FBI almost always bars recipients of the letters from disclosing to anyone — including customers — that they have even received the demands, U.S. District Judge Susan Illston said in the ruling released Friday.
The government has failed to show that the letters and the blanket non-disclosure policy "serve the compelling need of national security," and the gag order creates "too large a danger that speech is being unnecessarily restricted," the San Francisco-based Illston wrote.
FBI counter-terrorism agents began issuing the letters, which don't require a judge's approval, after Congress passed the USA Patriot Act in the wake of the Sept. 11, 2001, attacks.
The case arises from a lawsuit that lawyers with the Electronic Frontier Foundation filed in 2011 on behalf of an unnamed telecommunications company that received an FBI demand for customer information.
"We are very pleased that the court recognized the fatal constitutional shortcomings of the NSL statute," EFF lawyer Matt Zimmerman said. "The government's gags have truncated the public debate on these controversial surveillance tools. Our client looks forward to the day when it can publicly discuss its experience."
Illston wrote that she was also troubled by the limited powers judges have to lift the gag orders.
Judges can eliminate the gag order only if they have "no reason to believe that disclosure may endanger the national security of the United States, interfere with a criminal counter-terrorism, or counterintelligence investigation, interfere with diplomatic relations, or endanger the life or physical safety of any person."
That provision also violated the Constitution because it blocks meaningful judicial review.
Illston ordered the FBI to cease issuing the letters, but put her order on hold for 90 days so the U.S. Department of Justice can appeal to the 9th U.S. Circuit Court of Appeals.
Illston isn't the first federal judge to find the letters troubling. The 2nd U.S. Circuit Court of Appeals in New York also found the gag order unconstitutional, but allowed the FBI to continue issuing them if it made changes to its system such as notifying recipients they can ask federal judges to review the letters.
Illston ruled Friday that it's up to Congress, and not the courts, to tinker with the letters.
In 2007, the Justice Department's inspector general found widespread violations in the FBI's use of the letters, including demands without proper authorization and information obtained in non-emergency circumstances. The FBI has tightened oversight of the system.
The FBI made 16,511 national security letter requests for information regarding 7,201 people in 2011, the latest data available. The FBI uses the letters to collect unlimited kinds of sensitive, private information like financial and phone records.
The DOJ didn't immediately respond to a request for comment.
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