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Why a ruling against FBI's cyberspying power won't matter

The Electronic Frontier Foundation claimed a big win when a federal judge in San Francisco ruled last week that the FBI's right to request customer records from phone and Internet companies is unconstitutional. But the victory dance is likely premature.

The EFF and other organizations such as the ACLU have been fighting the FBI ever since the 2001 Patriot Act gave the agency permission to demand account information from telecommunications companies for people linked to a terrorist or foreign espionage investigation.

Recent headlines about the ruling could lead readers to believe that the FBI's right to issue a National Security Letter (referred to as an NSL) will soon be cut off, but that's not the case.

Already, U.S. District Judge Susan Illston has put a 90-day hold on the ruling to give the government time to appeal. Even if the courts (which could include the Supreme Court after a lengthy trip through the U.S. court system) upheld the ruling, Congress would have to pass legislation to change existing NSL laws.

And despite the rhetoric that casts NSLs as a dangerous invasion of the privacy of innocent Americans, the information that can be obtained by such a letter is no different than what other law enforcement agencies can get with a court order, such as customer name, address, phone numbers called and ISP addresses accessed. (ISP addresses are your computer's equivalent to your home's street address.)

Further, it can only be issued for suspected terrorists or spies, not for those suspected of other crimes. [Read more: Suspected Spies and Terrorists Use Google ]

And most important, an NSL cannot be used to obtain the content of any message. Content requires a warrant, meaning a law officer must show a judge that a terror or espionage suspect is likely linked to a crime.

In other words, an NSL is a shortcut for FBI investigators that other agencies don't have.

However, Judge Illston focused on a second aspect of NSLs that make them different than court orders. An NSL usually prohibits recipients from revealing that they've received the letter. (The EFF claims that 97 percent of NSLs include that prohibition.)

The secrecy requirement includes the courts, meaning that neither you nor a representative of your online service provider (be it an ISP or Google ) can challenge the letter in court. Illston's ruling would lift the gag order on NSLs.

However, according to Illston and similar rulings in the past, the NSL laws cannot be unbundled — it's strike them all and revise or leave them alone. Since they pertain to suspected terrorists and spies and reveal limited personal data, abolishing an FBI shortcut is unlikely to take top priority in Congress.

Read the full ruling (.pdf)

Email Leslie Meredith or follow her @lesliemeredith. Follow us @TechNewsDaily, Facebook or Google+.