HOORAY FOR THE ACLU!!!

(And for the anonymous ISP who asked the ACLU to take the case) You can find the PDF of the decision here. The issue is whether the FBI may prohibit the recipient of an NSL from EVER disclosing that it received it.

Here's the nub of the legal issue:

If a petition to modify or set aside the nondisclosure requirement is filed within one year of the NSL request, the reviewing court may grant such relief only if it finds that "there is no reason to believe" disclosure "may result" in one or more of the Enumerated Harms. 18 U.S.C. § 3511(b)(2). Moreover, if one of several authorized senior FBI officials "certifies that disclosure may endanger the national security of the United States or interfere with diplomatic relations,such certification shall be treated as conclusive unless the court finds that the certification was made in bad faith." Id.

...the Court must now consider whether the nondisclosure provision, with the judicial review now contemplated, still runs afoul of the First Amendment.

The judge took note of the abuses the Dept. of Justice's own Inspector General found in his report on the use of national security letters and discussed other areas, such as wiretaps, that have been kept secret BUT only when approved by a Court to begin with. He concluded :

In light of the seriousness of the potential intrusion into the ndividual's personal affairs and the significant possibility of a chilling effect on ppeech and association -- particularly of expression that is critical of the government or its policies -- a compelling need exists to ensure that the use of NSLs is subject to the safeguards of public accountability, checks and balances, and separation of powers that our Constitution prescribes. Accordingly, the issue now before the Court is not whether, or under what circumstances, the government should possess the authority to issue NSLs. Rather, the more fundamental question is the extent of the authority that the First Amendment allows the government to exercise in keeping its use of NSLs secret, insofar as such secrecy inhibits freedom of speech.

On the First Amendment issue, the judge had 2 main findings:

The Court's review of First Amendment jurisprudence yields two primary conclusions. First, the government's use of nondisclosure orders must be narrowly-tailored on a case¬by-case basis. That is, a nondisclosure order may not be broader in either scope or duration than the degree of secrecy required to serve the government's interest in protecting national security. Second, the nondisclosure orders must be subject to meaningful judicial review. To conform to prevailing constitutional norms as read by this Court, taking into account the unique latitude and added flexibility national security needs demand under ordinary circumstances, as well as the practicalities of surveillance work before a target is adequately identified, in issuing an NSL the government must either affirmatively terminate the nondisclosure requirement or bear the burden of justifying to a court why continued secrecy is necessary within a reasonable period of time after the FBI issues an NSL containing a nondisclosure order.

There is one further, very important issue: "the fundamental constitutional principles of checks and balances and separation of powers." The judge found that both Congress and the President improperly limited the nature of judicial review:

Independent of the First Amendment deficiencies identified by the Court, the deferential standard of review imposed on reviewing courts by § 3511(b) fails not only because it creates too great a danger that constitutionally protected speech will be suppressed, but more fundamentally because it reflects an attempt by Congress and the executive to infringe upon the judiciary's designated role under the Constitution. To conform with § 3511(b) as drafted, a court reviewing a nondisclosure order must apply not the standard of review the judge determines is mandated by constitutional law, but an overly deferential standard imposed by Congress. It is axiomatic that in our system of government it is the province of the courts to say what the law is. When Congress attempts to curtail or supersede this role, it jeopardizes the delicate balance of powers among the three branches of government and endangers the very foundations of our constitutional system. Thus, for this reason as well, 3511(b) fails.

The strong conclusion:

Any restriction on speech which is content-based and acts as a prior restraint is presumed unconstitutional, and the government bears the burden of demonstrating that the provision satisfies strict scrutiny.