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April 6, 2013

Google fights national security probe demand for user data

(Continued)

SAN FRANCISCO —

The petition itself was lodged under seal with the court. No details of the government's demand for records were disclosed in the filing.

Section 2709 is a federal law authorizing the Federal Bureau of Investigation to issue NSLs requiring wire and electronic communication service providers to turn over subscriber information and other records that the agency certifies are relevant to an investigation of international terrorism or clandestine intelligence activities. The law prohibits NSL recipients from disclosing they've received one.

Section 3511 (a) allows recipients of NSLs to petition a federal judge to set aside the request and allows judges to modify or set aside the request if complying with it would be "unreasonable, oppressive or otherwise unlawful." Section 3511 (b) allows NSL recipients to ask a court to lift the gag order.

U.S. District Judge Susan Illston yesterday granted Google's request to seal documents in the case. Illston ruled March 14 that the gag order section of the NSL law was unconstitutional and rendered the entire statute illegal.

Illston said the NSL statutes violated free speech and separation of power principles because the government failed to show that, to protect national security, it needs to always bar people from disclosing the mere fact they've received an NSL and the law impermissibly restricted courts from reviewing the need for nondisclosure.

She ordered the FBI to stop issuing NSLs and put her ruling on hold for 90 days to allow the government time to appeal.

"We are in this interesting in-between moment in which the government is still able to enforce its authority," said Marc Rotenberg, president and executive director of the Washington- based Electronic Privacy Information Center. "I suspect that this filing is an effort to push the issue further."

Chris Gaither, a spokesman for Mountain View, Calif.- based Google, declined to comment on the filing. Chris Allen, an FBI spokesman in Washington, also declined to comment.

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