They’re called national security letters and the FBI issues thousands of them a year to banks, phone companies and other businesses demanding customer information. They’re sent without judicial review and recipients are barred from disclosing them.
On Friday, a federal judge in San Francisco declared the letters unconstitutional, saying the secretive demands for customer data violate the First Amendment.
The government has failed to show that the letters and the blanket non-disclosure policy “serve the compelling need of national security,” and the gag order creates “too large a danger that speech is being unnecessarily restricted,” U.S. District Judge Susan Illston wrote.
She ordered the FBI to stop issuing the letters, but put that order on hold for 90 days so the U.S. Department of Justice can pursue an appeal to the 9th U.S. Circuit Court of Appeals.
The NSL’s do not allow agents to examine the content of communications, but look for patterns. But there is zero judicial oversight and, as mentioned, the gag order prevents recipients of NSL’s from even telling people what they’re doing, placing them under enormous stress.
I suspect — or maybe hope is the right word — that the Ninth Circus will also have issues with the security letters on both First and Fourth Amendment grounds (they recently put limits on the governments ability to search your computer at the airport). The FBI issues tens of thousands of these a year and a 2007 investigation found that they were very lax in following the few rules that applied to them (Surprise! A federal agency was abusing the rules in the absence of oversight!). The Second Circuit demanded the FBI notify recipients that they can challenge the gag order in Court but EFF is of the opinion that it’s not enough and it’s not being done consistently.
The secretive NSL’s create another issue beyond First and Fourth Amendment concerns. One of the problems with challenging the Surveillance State is that people being surveilled often don’t know it. This makes it very difficult to challenge surveillance powers in Court because, in the Clapper decision last week, SCOTUS ruled that challengers lack standing unless they personally have been subject to a problematic search. This puts civil libertarians in a catch-22. You can’t know if you’re being surveilled but you can’t challenge the law unless you know you’re being surveilled.
In the end, a lot of this is going to end up in the lap of the Supreme Court. I have little faith that they will rein in the government now that Stephens is gone. But it’s possible, given Scalia’s occasional sympathies toward civil liberties, that the facade of unilateral unlimited government surveillance power could be cracked.