National Security Letters

By: Nicole A. Ozer

The government uses National Security Letters (NSLs) to demand access to sensitive records in the custody of Internet service providers, financial institutions, credit reporting agencies, and many other kinds of organizations. In almost all cases, recipients of the NSLs are served with gag orders that prohibit them from disclosing that they have received the letters.

The NSL statute violates the First Amendment because it invests the FBI with the power to censor speech without meaningful judicial review. The statute also violates the principle of separation of powers because it requires courts to rubber stamp gag orders issued by the FBI.

Notably, every time an NSL recipient has challenged an NSL in court, the government has ultimately withdrawn its demand for records. To the ACLU's knowledge, only 3 NSL recipients have ever challenged an NSL in court; in each case the recipient was represented by the ACLU. One case involved an NSL served on an Internet Service Provider (ISP). Another case involved an NSL served on a group of librarians. In both cases, the judges found the gag orders unconstitutional. In the ISP case, the district court ruled that NSL statute's gag provisions were unconstitutional and invalidated the entire statute. The U.S. Court of Appeals for the Second Circuit is expected to hear oral arguments in the government's appeal of that case next month.

Since the Patriot Act was authorized in 2001, relaxing restrictions on the FBI's use of the power, the number of NSLs issued has seen an astronomical increase. Reports from the Justice Department's Inspector General reveal that the FBI has issued nearly 200,000 NSL between 2003 and 2006. Multiple investigations have found serious FBI abuses of regulations and numerous potential violations of the law.

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