(Mint Press) – In a surprising move, a federal judge ruled national security letters (NSLs) unconstitutional — a long-used intelligence tool used by the Federal Bureau of Investigation (FBI) to force telecommunication utilities to disclose user information — and ordered the government to immediately stop using them.
U.S. District Judge Susan Illston determined that the gag orders the NSLs impose on telecoms to prevent disclosure of the request for information to the customer in question are a violation of the First Amendment right to free speech. In addition, Illston ruled that the gag provision must be lifted in other cases. Illston argued that the NSL’s indefinite gag order amounts to a “permanent ban on speech absent the rare recipient who has the resources and motivation to hire counsel and affirmatively seek review by a district court.”
Illston stayed her decision, however, for 90 days in order to give the federal government the opportunity to appeal to the Ninth Circuit Court of Appeals. The Justice Department has indicated that it has all intentions to appeal this ruling.
“We are very pleased that the Court recognized the fatal constitutional shortcomings of the NSL statute,” said Matt Zimmerman, senior staff attorney for the Electronic Frontier Foundation, which filed a challenge to NSLs on behalf of an unknown telecom that received an NSL in 2011. “The government’s gags have truncated the public debate on these controversial surveillance tools. Our client looks forward to the day when it can publicly discuss its experience.”
The telecommunications company received the NSL from the FBI in 2011 seeking information about a customer or customers. The FBI has sent out nearly 300,000 NSLs since 2000. Last year, the FBI sent out 16,511 NSLs requesting information pertaining to 7,201 American citizens and legal aliens. Despite this, the NSL provision has only been challenged twice. Most NSL recipients accept and obey the NSL, instead of having to fight the Justice Department privately and secretly.
“This ruling is the most significant court victory for our constitutional rights since the dark day when George W. Bush signed the PATRIOT Act,” said Michael Kieschnick, CEO of CREDO Mobile, a grassroot sponsor of progressive action. “This decision is notable for its clarity and depth. From this day forward, the U.S. government’s unconstitutional practice of using National Security Letters to obtain private information without court oversight and its denial of the First Amendment rights of National Security Letter recipients have finally been stopped by our courts.”
Taking on the Justice Department
Recently, Google took a small step toward breaking the veil of secrecy surrounding NSLs by publicly publishing the number of requests it has received. Google, however, was only able to provide the number to the nearest thousand in accordance to an agreement with the FBI.
After the telecom challenged the Justice Department in regards to the NSL, the Justice Department — in turn — sued the telecom for defying the NSL and for violating the governing law for NSLs. This is despite the fact that the USA PATRIOT Act allows a telecom to make a challenge on a NSL it believes to be unfair or unnecessary.
“It’s a huge deal to say you are in violation of federal law having to do with a national security investigation,” says Zimmerman. “That is extraordinarily aggressive from my standpoint. They’re saying you are violating the law by challenging our authority here.”
This is only the second time a NSL was challenged in court. The first time happened in 2004 when an independent ISP owner named Nicholas Merrill challenged a NSL that seeked information on a business customer on his network. Before the case was able to be argued in court, however, the federal government withdrew the NSL.
After the 2004 incident, a judge ruled that the NSL’s gag order was unconstitutional. To get around this, Congress expanded the challenge provision, allowing a telecom to simply write the FBI a letter explaining why it is opposing the NSL’s gag order. At that point, the FBI must prove, in court, that disclosing the NSL would hurt national security.
NSLs are requests the federal government can make under the USA PATRIOT Act that require credit card companies, telecoms, Internet service providers and financial institutions to give transactional information on communiques and transactions conducted by a suspect. These requests do not require a court order or warrant; the only authority needed for such a search is the consent of the local agent-in-charge, attesting that the NSL is “relevant” to an ongoing investigation.
The fact that NSLs are not court-ordained raises the possibility of grave abuse. For example, in 2007 a Justice Department Inspector General audit found that the FBI had indeed abused its authority and misused NSLs on many occasions. After 9/11, the FBI paid multimillion-dollar contracts to AT&T and Verizon requiring the companies to station employees inside the FBI and to give these employees access to the telecom databases so they could immediately service FBI requests for telephone records. The IG found that the employees let FBI agents illegally look at customer records without paperwork and even wrote NSLs for the FBI.
The federal government’s suit against the telecom argues that a telecom cannot use its right to challenge a single NSL to contest the foundations for NSLs as a law. The federal government has since stayed its case, but has not closed it.
While the argument at hand is the gag order, Zimmerman argues that the most dangerous part of the NSL provision is the freedom it affords the government. “They’re asking for association information – who do you hang out with, who do you communicate with [in order] to get information about previously unknown people. That’s the fatal flaw with this [law],” Zimmerman told Wired last year. “Once the FBI is able to do this snooping, to find out who Americans are communicating with and associating with, there’s no remedy that makes them whole after the fact. So there needs to be some process in place so the court has the ability ahead of time to step in [on behalf of Americans].”