The Federal government is arguing, despite rulings by the court to the contrary, that under the Patriot Act they are, or at least should be, allowed to demand customer records and information from ISPs (Internet service providers) in secret, and without a court order.
In other words, the Feds are saying “all your Internet records are belong to us”.
The way that the government wants it to work is that they get to send an NSL (national security letter) to an Internet service provider demanding information about the provider’s customer, or the customer’s activity, and the law does provide for this.
What it doesn’t provide for is a mechanism for the ISP to challenge the demand. Without any court case (such as would exist if the government had to get a court order to access the ISP’s information), and without any other provision in the Patriot Act for the ISP to challenge the demands in the NSL, it makes it difficult for the ISP to say “no” or even “why?”
To compound things, the law prohibits the recipient of an NSL from disclosing that they have received an NSL.
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The government says that things work fine just the way they are, and that the current set-up is necessary to protect national security.
But organizations such as the ACLU, and more pointedly, a Federal court ruling on the issue last year, disagree. The court found that the status quo represented an improper barrier to legal challenges, and that the nondisclosure aspect amounted to an impermissible gag order.
This past week the Feds filed an appeal of that ruling.
It ain’t broke, so you shouldn’t have fixed it, said the Feds in their appeal, pointing out that while the naysayers claim that the current state of the law and the Patriot Act prevent ISPs from challenging an NSL, “…in this very case, the recipient of the NSL did precisely what the NSLs supposedly prevent recipients from doing” (challenging the NSL).
Not really, though. The lawsuit was not a challenge to the NSL, it was a challenge to the constitutionality of the law itself.
The obvious answer to all of this is to amend the Patriot Act to include a mechanism for an ISP receiving an NSL to challenge it.
Don’t hold your breath.
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