Tech Law

National Security Letters’ Constitutionality Likely a Matter for the Supreme Court

A U.S. District Court judge from the Ninth Circuit found that the government’s controversial use of so-called National Security Letters violates the First Amendment and the concept of separation of powers.

U.S. District Judge Susan Illston ordered the government to stop issuing the national security letters and to stop enforcing the gag order. Illston then stayed her order for 90 days so the government could petition the Ninth Circuit Court of Appeals.


Gag Order

National Security Letters give the Federal Bureau of Investigation the power to compel banks, telephone companies, Internet Service Providers and other businesses to turn over customer records.

The companies are placed under a gag order that forbids them from telling anyone about their receipt of a letter. National Security Letters have been around since the 1970s, but their use dramatically expanded in 2001 under the Patriot Act, according to Bill Dunlap, a law professor at Quinnipiac University.

Civil libertarians and other opponents have decried NSLs because they act like a search warrant but don’t require a judge’s signature, Dunlap said.

However, the judge did not directly address the actual issue of the NSL, Dunlap pointed out.

“She struck down both provisions — the gag order and the NSL provision — because she found that they were not severable,” he explained. “The gag order is a First Amendment rights violation, she found, which is why that was struck down. She found that she could not sustain one without the other.”

The judge also noted that the statute does not allow for sufficient discretion in its provision for judicial review, Dunlap said. “It basically forces the court to accept the government’s position, thus depriving the court of its proper function.”

90 Days

For the next 90 days — and probably for much longer — it will be business as usual for banks and telecom companies that have been on the receiving end of these letters.

Almost certainly, the government will appeal, Dunlap said. “This could drag on for some time, so companies will have to continue to adhere to the gag orders until it is finally settled.”

The Supreme Court will likely resolve the matter, he predicted.

The NSLs’ ultimate fate “is still very much a guessing game,” Dunlap said. “There are strong arguments to be made for both sides.”

Illston made a strong argument when she struck down the gag order, he added. “She said it was overly broad and that it keeps people from talking about matters of important public interest.”

As its stands now, the statute allows the government to issue a gag order for every NSL without having to establish there is a need for one.

New Tools to Fight Terrorism

There is also a compelling argument that NSLs are necessary to fight terrorism. Their use dramatically expanded after the 9-11 attacks.

“While it is important to protect our First Amendment rights, we can’t forget that there are groups of people out there that seek our demise,” Larry Kawa, chairman of the American Courage PAC, told TechNewsWorld.

“Some of those people have managed to infiltrate our walls, and we need to give law enforcement and intelligence all of the necessary tools it needs,” he said.

Where the National Security Letters fail to pass muster is in lacking a proper judicial review mechanism, Kawa said.

“Not even Congress has exercised oversight over these, although they have every right to,” he noted.

In short, “it is of vital importance to give the necessary capabilities to our nation’s counterterrorism efforts,” said Kawa, “but those tools need to have some checks and balances to ensure that these tremendous capabilities are used responsibly.”

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