by: Matt Zimmerman
July 18, 2012
Since the first national security letter statute was passed in 1986, the FBI has issued hundreds of thousands of such letters seeking private telecommunications and financial records of Americans without any prior approval from courts. Indeed, for the period between 2003 and 2006 alone, almost 200,000 requests for private customer information were sought pursuant to various NSL statutes.
Prior to 2011, the constitutionality of this legal authority to investigate the records of Americans without court oversight had been challenged in court — as far as we know — exactly one time
.EFF is today releasing FBI-redacted briefing from a major new ongoing case
in which it is challenging one of the NSL statutes on behalf of a telecommunications company that received an NSL in 2011. Not only does this briefing show that the Department of Justice continues to strongly protect the FBI’s NSL authority, it highlights a startlingly aggressive new tactic used by the Department of Justice: suing NSL recipients
who challenge the FBI’s authority, arguing that court challenges to such authority themselves amount to breaking the law.National security letter statutes — five in all
— are controversial laws that allow the FBI to easily bypass courts and issue administrative letters on their own authority to telecommunications companies and financial institutions demanding information about their customers.
The NSL statutes permit the FBI to permanently gag service providers from revealing the fact that the demand was made, preventing them from notifying either their customers or the public. While the statute has many deficiencies, one of the core constitutional issues (already recognized by one federal appeals court
) is that it turns the First Amendment’s procedural prior restraint doctrine on its head by allowing the FBI to issue a never-ending prior restraint on its own, then requiring the recipient service provider to undertake a legal challenge.