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McCullagh reports: "A federal judge has ruled that Google must comply with the FBI's warrantless requests for confidential user data, despite the search company's arguments."

On March 1, Google introduced a new program that collects user data from its 60 services. (photo:
On March 1, Google introduced a new program that collects user data from its 60 services. (photo:

Judge Orders Google to Grant Warrantless Access to FBI

By Declan McCullagh, CNET

02 June 2013


A federal judge tells the company to comply with the FBI's warrantless National Security Letter requests for user details, despite ongoing concerns about their constitutionality.

A federal judge has ruled that Google must comply with the FBI's warrantless requests for confidential user data, despite the search company's arguments that the secret demands are illegal.

CNET has learned that U.S. District Judge Susan Illston in San Francisco rejected Google's request to modify or throw out 19 so-called National Security Letters, a warrantless electronic data-gathering technique used by the FBI that does not need a judge's approval. Her ruling came after a pair of top FBI officials, including an assistant director, submitted classified affidavits.

The litigation taking place behind closed doors in Illston's courtroom - a closed-to-the-public hearing was held on May 10 - could set new ground rules curbing the FBI's warrantless access to information that Internet and other companies hold on behalf of their users. The FBI issued 192,499 of the demands from 2003 to 2006, and 97 percent of NSLs include a mandatory gag order.

It wasn't a complete win for the Justice Department, however: Illston all but invited Google to try again, stressing that the company has only raised broad arguments, not ones "specific to the 19 NSLs at issue." She also reserved judgment on two of the 19 NSLs, saying she wanted the government to "provide further information" prior to making a decision.

NSLs are controversial because they allow FBI officials to send secret requests to Web and telecommunications companies requesting "name, address, length of service," and other account information about users as long as it's relevant to a national security investigation. No court approval is required, and disclosing the existence of the FBI's secret requests is not permitted.

Because of the extreme secrecy requirements, documents in the San Francisco case remain almost entirely under seal. Even Google's identity is redacted from Illston's four-page opinion, which was dated May 20 and remained undisclosed until now. But, citing initial filings, Bloomberg disclosed last month that it was Google that had initiated the legal challenge.

While the FBI's authority to levy NSL demands predates the Patriot Act, it was that controversial 2001 law that dramatically expanded NSLs by broadening their use beyond espionage-related investigations. The Patriot Act also authorized FBI officials across the country, instead of only in Washington, D.C., to send NSLs.

EFF's separate challenge

Illston, who is stepping down from her post in July, said another reason for her decision is her desire not to interfere while the Ninth Circuit Court of Appeals is reviewing the constitutionality of NSLs in an unrelated case that she also oversaw.

In that separate lawsuit brought by the Electronic Frontier Foundation on behalf of an unnamed telecommunications company, Illston dealt a harsh blow to the bureau's use of NSLs.

EFF had challenged the constitutionality of the portion of federal law that imposes nondisclosure requirements and limits judicial review of NSLs. Illston ruled that the NSL requirements "violate the First Amendment and separation of powers principles" and barred the FBI from invoking that language "in this or any other case." But she gave the Obama administration 90 days to appeal to the Ninth Circuit, which it did on May 6.

Neither the FBI nor Google responded to requests for comment. (In March, Google began publishing summary statistics about NSLs it received, making it the first major Internet company to do so.)

These aren't the first cases to tackle whether NSLs, including gag orders, are constitutional or not. In a 2008 ruling (PDF), the Second Circuit Court of Appeals handed down a mixed decision.

A three-judge panel of the Second Circuit took an odd approach: the judges agreed that the "challenged statutes do not comply with the First Amendment" but went on to rewrite the statute on their own to make it more constitutional. They drafted new requirements, including that FBI officials may levy a gag order only when they claim an "enumerated harm" to an investigation related to international terrorism or intelligence will result.

Illston's decision in the Google NSL case said that the FBI had submitted "classified" evidence "intended to demonstrate that the 19 NSLs were issued in full compliance with the procedural and substantive requirements imposed by the Second Circuit."

That includes classified declarations submitted by Stephanie Douglas, executive assistant director of the FBI's national security branch, and Robert Anderson, assistant director of the counterintelligence division at FBI headquarters.

A 2007 report by the Justice Department's inspector general found "serious misuse" of NSLs, and FBI director Robert Mueller pledged stricter internal controls. Mueller has also called the investigative technique invaluable.

Update 10 a.m. PT: In a previously unreported lawsuit in Manhattan, the Justice Department has asked a judge to grant its "petition to enforce" a NSL that the FBI sent to Google for confidential user data. The search company is fighting the request. your social media marketing partner


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+93 # WestWinds 2013-06-02 11:12
I'd like to know what the Federal Government is REALLY doing with this information.

Don't tell me they need to know every little thing about 300 million people to track a couple of "National Security" risks code name Al-Quaida in their joke called War on Terrorism.

It sounds more to me like they are screening for activists and anyone who could pose opposition to their New World Order.
+48 # angry 2013-06-02 11:18
Yea, I have nothing to hide, and I don't give a damn if they have my email address. But where in the hell is this going to stop? And why are my taxes used to check out guys like me? And sure, my government is HONEST (I think!!!). But then, I look at our leadership, our politicians, and I wonder!

Damn, we need independent oversight!
+37 # Billy Bob 2013-06-02 11:44
Where in the hell is this going to stop?

IT'S NOT, unless the American people MAKE IT stop. This will require a Constitutional Amendment and serious consequences for politicians who are willing to pretend our liberties don't exist.

Right now, the American people aren't pissed off enough. As it's going, by the time people care, it will be too late.
0 # randrjwr 2013-06-05 09:58
Quoting Billy Bob:
Where in the hell is this going to stop?

IT'S NOT, unless the American people MAKE IT stop. This will require a Constitutional Amendment and serious consequences for politicians who are willing to pretend our liberties don't exist.

Right now, the American people aren't pissed off enough. As it's going, by the time people care, it will be too late.

The place to start "making it stop" with a Constitutional Amendment is with the multitude of attacks on voting rights at the state level. These attacks are disenfranchisin g the very voters we need to get the needed Amendment proposed and ratified, not to mention a multitude of other changes needed for the good of the 99% of this country.
+41 # guomashi 2013-06-02 11:33
Is there any further doubt that America is a fascist country?
+4 # jwb110 2013-06-02 13:21
Quoting guomashi:
Is there any further doubt that America is a fascist country?

It looks more like a Stalinist country to me.
+10 # RHytonen 2013-06-02 18:47
Quoting jwb110:
Quoting guomashi:
Is there any further doubt that America is a fascist country?

It looks more like a Stalinist country to me.

Corporations and other for-profit private businesses, so very much did NOT run Stalin's USSR and/or write its laws.

ALso remember that the definition of FASCISM, by its creator, does not require nor describe a dictatorship or even a police state. It merely means "the merger of state and industry (business) power."

Incidentally an Oligarchy or a Plutarchy
is, BY DEFINITION of the terms, the ANTITHESIS of a Democracy AND of a Republic as well.

That is exactly how our country functions TODAY, and it is VERY much a right wing, ANTI-Liberal, ANTI-individual , ANTI-worker/ANT I-Union phenomenon and agenda. Mussolini also noted Fascism is identical to Corporatism, and could also be called by that name.
0 # mdhome 2013-06-04 09:58
100% agreement.
+2 # RHytonen 2013-06-02 18:54
Quoting guomashi:
Is there any further doubt that America is a fascist country?

No there is not.
But it should be noted that the term Fascism neither denotes, requires, defines nor suggests the existence of either a dictator or a police state.

When you want to suggest or define those things the word you want is totalitarian or dictatorship.

This, from the ONLY valid and correct definition of the term "Fascism" - by its inventor.
+16 # tm7devils 2013-06-02 11:48
And again, another "lackey" judge doing her
masters bidding...
If we got rid of the constitution, we would save time and money on these court cases, after all, what good is it if judges can dis it so nonchalantly.
+3 # Erdajean 2013-06-02 22:33
In one sense,what Judge Illston has done is to tell Google that the defense they presented is fallible and weak and needs a lot more heft to withstand the assaults on privacy that are sure to come.

Any way we take this, The Enemy is not some remote country or political ideal -- it is you and me. It is the individual conscience and spirit. If we do not wake up, stand up and oppose this consummate Evil with all that is in us, the future looks pretty glum.
+34 # DaveM 2013-06-02 11:51
Some of you may recall that now-quaint book, "1984". Everyone was required to have their TV sets on at all times, and the TV watched YOU. I can hear Orwell spinning in his grave. He intended his book as a warning.
0 # MylesJ 2013-06-03 11:04
You are surprised at this????? The original title of the book was 1948 - but the publisher would not release it with that title. Remember that he was writing at the end of WWII. He had just observed the security establishments of that time and could see where things were going.
+31 # Billy Bob 2013-06-02 11:52
This is why who becomes president and who is in control of the Congress matters.

If we had done better than President Clinton (who nominated this judge) with a real liberal instead of a phony one, she wouldn't be making a mockery of the Constitution.

If we had real actual liberals in control of Congress, instead of far right-wing lunatic Republicans and phony-only-libe ral during election time Democrats, we'd have open judicial slots being filled right now, instead of allowing an obstructionist Congress to just wait out the entire 8 years of President Obama's term - not that he's willing to nominate very many liberal judges.

Right now, Americans are afraid of our government. Our government SHOULD BE afraid of US (and I don't mean in the way of suicidal delusional right-wing "2nd Amendment remedies" fantasy of victory through intimidation, but rather, in the sense that the electorate actually votes and actually pays attention to the issues before election day).
+5 # futhark 2013-06-03 07:47
Don't neglect to include doing better than President Obama, who has consistently supported increased government surveillance since voting for FISA in 2008 while a senator. Only 4 months in office in 2009, he gave his nationally televised speech advocating indefinite detention for those suspected of terrorist links. And yet millions of otherwise liberty loving Americans flocked to the polls to reelect this man in 2012.

Americans need to start taking a more critical view of how corporate controlled media advances the candidacy of politicians who will do their bidding and uses the techniques of mass psychology to convince voters that their guy really does represent hope and change, even in the face of evidence to the contrary.
+1 # Billy Bob 2013-06-03 08:24
"Don't neglect to include doing better than President Obama"

I thought that was pretty implicit in what I said.

We need to elect liberals in the Democratic Party. Right now, we don't have any in a position of power.

The first step, will be when a real liberal decides to challenge the presumptive next president, Hillary Clinton, in the 2016 PRIMARIES. If everyone speaking from her left chooses to sit out the primary and wait until the general election so they can run on a 3rd party ticket, we are doomed for this to continue again, and again.

The Green Party SHOULD BE more like the T-Party (i.e. a separate party in name only). We all know the T-Party is just the psychotic mentally unhinged wing of the Republican Party.

The Green Party is too "pure" for that. Rather than reforming the Democratic Party from within, it would rather sit on the sidelines and wonder why it never wins national elections.
+22 # KrazyFromPolitics 2013-06-02 11:59
This judge should be removed from the bench, and investigated for whatever it is they call malpractice in the legal profession.
+29 # tedrey 2013-06-02 12:13
"We want to do this, and we refuse to tell you why" is the position taken by criminals and corrupt corporations; it should not be that of law-enforcers. Only totalitarians can find this convincing or desirable in their national police.
-7 # Michael_K 2013-06-02 12:14
As I've said many times before, when you give a 5 poud hammer to a little kid, you have no right to act surprised when he uses it for slmefhing other than to pound nails. PRarticularly when that "kid" is an inveterate liarike Obama.
+33 # PABLO DIABLO 2013-06-02 12:29
Elizabeth Warren for President 2016. Take back our government. Vote the leeches out, repeal Citizens United, boycott the corporations that are killing us, cut the military machine down to size. Wake up America.
0 # RLF 2013-06-03 05:12
We need a liberal pledge like the right wing has for taxes...a line to step over.
+1 # Billy Bob 2013-06-03 08:26
We do. The problem is that the left is too fractured to follow through. By definition, the left is pretty bad at following in lock-step. That's a right-wing specialty and goes against our grain.

Really, the only thing you and I disagree about is strategy.
-2 # Michael_K 2013-06-03 10:29
The left is not only too fractured, a considerable faction still refuses to recognise that Obama is its enemy.
-2 # Billy Bob 2013-06-03 12:10
Referring to him as the "enemy" really isn't very productive, unless you're goal is to join the T-Party and form a looney "militia".

You're oversimplifying the reality of politics. You assume that anyone unwilling to act like AM radio (and further alienate the left from the rest of society) is a traitor to your "purity".

How about focusing on a way to fix problems, rather than just idly bitching about the rest of the voters who haven't come around to your way of thinking?
-1 # Michael_K 2013-06-04 11:37
Obviously, you feel that acknowledging reality is "unproductive". . Sad!
-2 # Billy Bob 2013-06-04 19:05
No. I feel that failing to do anything but bitch about it with melodramatic language, rather than come up with a realistic strategy to fix it is unproductive... Pathetic!
+9 # James Marcus 2013-06-02 12:30
Judge needs a turn.... behind The Wood Shed.

The Powers-That-Be now control All:
Congress (majority)
Supreme Justices (majority)
Major Media
Now what?
+14 # jinjelle 2013-06-02 12:50
This judge should be slated for impeachment for violating his oath of office; swearing on The Bible to uphold The Constitution of the United States.
+6 # fieldmanh 2013-06-02 12:54
Perhaps this is becoming the United States of China?
+19 # MindDoc 2013-06-02 12:57
Tough times to comply with both "Justice" and "Do no evil"!

Is Facebook right: there is no longer any such thing as privacy? (Except for political PACs, of course.) And thus we have no expectation of privacy, evan among law-abiding citizenry?

In this era of corporate people, are *human* rights nullified?
Google is standing ground on an important principle - so far.
Well done. They deserve our support - and media coverage!
+10 # David P 2013-06-02 13:28
" The FBI issued 192,499 of the demands from 2003 to 2006."

This is so out-of-hand, that if it wast eroding our rights and privacy, it would be laughable.
+6 # roger paul 2013-06-02 13:58
Since when has swearing on a bible prevented anyone, especially judges and politicians, from not upholding the Constitution? This whole thing about swearing on the bible is a sham.
+7 # She Cee 2013-06-02 14:02
Another long slide down the slippery slope.
+1 # cordleycoit 2013-06-02 14:10
Your solar power click jacking advertiser has hit again. Besides some using your site to advertize, looks like the Ministry of Truth is back at it again. One hand givith and the other takes it away. This keeps the shysters well paid and the DOJ combing our files. The truth sniffers are out there looking for sin.
+14 # geraldom 2013-06-02 15:03
Why is everyone here not asking the most important question of all. The federal court system is supposed to be a completely independent untouchable branch of our government and its most important duty of all is to uphold and protect our Constitution and our Bill of Rights. There is supposed to a strong separation of powers where the judicial branch is not supposed to be jumping through the hoops of the Executive Branch of our government including any enforcement and/or spy agency.

The judicial branch of our government is not supposed to be asking the FBI or any other enforcement and/or intelligence agency of our government the question as to how high they would like the judicial branch to jump when asked to do so. Our court system has the final word as to whether or not something is Constitutional, and they cannot in any way be touched or prosecuted or punished if they fail to conform to the demands of the FBI, the CIA, the DIA, or the NSA, or even the DOJ or the White House.

So, why does it seem that our federal court system has now for the longest time, most especially since Bush virtually changed its makeup, been making decisions that are obviously unconstitutiona l and illegal as a matter of course?

We all know the answer to that question, or at least we should know. Our court systems, both at the federal and state levels have all but become completely corrupted and rotten to the core with political cronies for judges.
+5 # Activista 2013-06-02 19:49
Agree - another question is why GOOGLE ... because others (Microsoft, FACEBOOK, YAHOO ..) gave up and "collaborate" with GESTAPO -- oops FBI ... ONE VOLKS - ONE FUHRER.
This is why Americans are getting such a lousy news ... truth is stopped before it gets out .. worth than Soviet Union Empire - PRAVDA .. before its collapse.
+4 # opieee 2013-06-02 21:15
I hope Google drags it's feet and appeals the decision.
+4 # geraldom 2013-06-03 08:45
Quoting opieee:
I hope Google drags it's feet and appeals the decision.

You have to realize that the FBI has pressed on with this issue under the Obama admin, our so-called savior as was hoped when he was voted into office in Nov of 2008. It has not stopped. Obama is supporting the efforts by the FBI, the CIA and other government agencies to further degrade what little that we have left of a Constitution and a Bill of Rights.

In addition, it doesn't help the situation when you realize that George W. Bush, a Republican president, with the help and support of the Congressional Democrats, succeeded in placing well over 300+ extremist judges politically-ori ented judges into positions on the federal bench, including two onto the U.S. Supreme Court (SCOTUS) itself. This was done to ensure that the Republicans and (it appears) the current crop of Democrats in Washington (including Obama) that the status quo will not be changed, that any appeal to reverse a righteous decision made by a lower-court judge that would in any way reestablish some semblance of democracy in this country would be succeed in a higher court and ultimately by SCOTUS if it went that high.

It would also ensure that any appeal to squash a lower court decision, like this one, that further degrades our Constitutional rights, such as this one, would succeed in a higher court and ultimately by SCOTUS if it went that high.

So, you see, with the current makeup of SCOTUS we are all screwed.
+1 # newsmom 2013-06-04 06:10
1984 anyone? anyone? 1984?
0 # Michael_K 2013-06-22 12:01
I haven't seen you offer up even a scintilla of a "realistic" strategy for anything. Defending the indefensible is hardly a "strategy", grasshopper.

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