A federal judge in San Francisco has declared “national security letters” from the Federal Bureau of Investigation to banks, phone companies, and other businesses to be unconstitutional.
The March 15 ruling by U.S. District Judge Susan Illston declared the letters do not “serve the compelling need of national security.” The FBI has been issuing thousands of letters annually on its own authority and with no judicial review to obtain confidential customer information. The letters also order the companies not to disclose the demands for information to targeted customers or others. The FBI began issuing the letters after the USA Patriot Act became law in 2011.
The FBI acknowledges sending more than 16,000 national security letters in 2011 alone, seeking potentially unlimited amounts of financial, communications, and other information.
Illston ruled the gag orders violate the First Amendment, and the issuance of the letters with no judicial review procedures violates separation of powers. She struck down the entire statute allowing national security letters. But she allowed the federal government 90 days to appeal before the ruling goes into effect.
‘Fatal Constitutional Shortcomings’
"We are very pleased that the court recognized the fatal Constitutional shortcomings of the NSL statute," said Electronic Frontier Foundation Senior Staff Attorney Matt Zimmerman, in a statement. The EFF brought the case on behalf of a telecommunications company that remains unidentified.
“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," Zimmerman said.
In addressing the concerns of the service provider, the court noted: "Petitioner was adamant about its desire to speak publicly about the fact that it received the NSL at issue to further inform the ongoing public debate."
"The First Amendment prevents the government from silencing people and stopping them from criticizing its use of executive surveillance power," said EFF Legal Director Cindy Cohn, in a statement. "The NSL statute has long been a concern of many Americans, and this small step should help restore balance between liberty and security."
‘Too Large a Danger’
In her ruling, Illston noted the FBI has issued gag orders on 97 percent of the thousands of national security letters it has issued.
“This pervasive use of non-disclosure 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 added, “In addition to the breadth of the non-disclosure provision, the Court is concerned about its duration. Nothing in the statute requires or even allows the government to rescind the non-disclosure order once the impetus for it has passed.”
Finally, she declared the statue “impermissibly attempts to circumscribe a court’s ability to review the necessity of non-disclosure orders.”
“Order Granting Motion to Set Aside NSL Letter”: https://www.eff.org/document/nsl-ruling-march-14-2013