A California federal judge has struck down a key provision of the law governing National Security Letters (NSLs), controversial government subpoenas whose use was expanded by the Patriot Act. Under current law, the recipient of an NSL can be legally prohibited from disclosing not only the contents of the request but the fact that he received a request at all. That, ruled Judge Susan Illston on Thursday, was inconsistent with the First Amendment.

The ruling is a setback for the FBI, which issues tens of thousands of NSLs every year. Judge Illston has given the government 90 days to appeal before it takes effect.

Re-writing the law to save it

Judge Illston is not the first to consider the constitutionality of the gag orders that often accompany NSLs. In 2008, the United States Court of Appeals for the Second Circuit ruled that the NSL statute is unconstitutional as Congress had written it, but it allowed the provisions to stay in place if the government agreed to put in place additional free speech safeguards.

At the Second Circuit's prodding, the government has promised to notify NSL recipients that they had the option to challenge gag orders in court. The appeals court also modified the standards for reviewing the gag orders, making it easier for recipients to convince judges to lift them.

In effect, the Second Circuit re-wrote the law as Congress had written it and then ruled that this modified version of the law was constitutional. That approach didn't sit right with Judge Illston. While courts do sometimes re-interpret ambiguous laws to avoid constitutional problems, there was nothing vague about the NSL statute. In her view, if a statute is clearly unconstitutional, it's the job of Congress, not the courts, to re-write it.

Judge Illston was also troubled by the indiscriminate use of gag orders. The government's own figures suggest that 97 percent of NSLs come with disclosure restrictions. Moreover, these restrictions are not time-limited. Theoretically, they stay in place forever, and the law places the burden on recipients to go to court to get them lifted.

"This pervasive use of nondisclosure orders, coupled with the government's failure to demonstrate that a blanket prohibition on recipients' ability to disclose the mere fact of receipt of an NSL is necessary to serve the compelling need of national security, creates too large a danger that speech is being unnecessarily restricted," she wrote.

She was also concerned about a section of the statute that attempted to restrict the legal standards judges could apply in reviewing non-disclosure orders. The statute says that judges may only lift gag orders if there is "no reason to believe that disclosure may endanger the national security of the United States, interfere with a criminal counterterrorism, or counterintelligence investigation, interfere with diplomatic relations, or endanger the life or physical safety of any person." Judge Illston believed that this standard, which makes it easy for the court to suppress speech on flimsy evidence, conflicted with the courts' inherent right to review all legislation for compliance with the First Amendment and other provisions of the Constitution.

Unlike the Second Circuit, Judge Illston was not willing to re-write the law in order to save it. So she declared the entire national security letter statute unconstitutional.

Limited time offer

"However, given the significant constitutional and national security issues at stake," the judge wrote, her ruling won't take effect immediately. She's given the government 90 days to appeal it to the US Court of Appeals for the Ninth Circuit.

The Ninth Circuit is generally considered one of the more liberal courts in the country. If it upholds the decision, it could create a "circuit split," a conflict between two of the nation's appeals courts. That would make it more likely that the Supreme Court would step in to resolve the disagreement.