Federal Court Strikes Down National Security Letter Statute

By: Matt Zimmerman

On Friday, the federal district court for the Northern District of California released a 24-page opinion in which it struck down a national security letter (NSL) statute — 18 U.S.C. § 2709 — that authorizes the FBI to obtain customer records from telecommunications companies and to gag those recipients from publicly disclosing that an NSL had been received.  In 2011, the Electronic Frontier Foundation (full disclosure:  I’m lead counsel on the case at EFF) filed a petition on behalf of an unnamed telecommunications provider to set aside both the NSL it received as well as the statute itself.  In our petition, EFF challenged both provisions of the NSL statute on First Amendment and separation of powers grounds.  The court granted our petition, agreeing that the statute amounted to a prior restraint without the necessary procedural safeguards required by the First Amendment.  Moreover, because it found that the statute was not severable, the court ordered that the entire statute must be struck down and that the FBI issue no further NSLs.

This is a big deal.  While NSL statutes were first created in the mid-80s as a counter-intelligence tool to help ferret out spies, their scope was dramatically expanded by the PATRIOT Act to allow the FBI to obtain subscriber information about anyone so long as a field-level Special Agent in Charge certified that the information sought was “relevant” to a national security investigation.  NSL use has skyrocketed since the PATRIOT Act was passed, with the FBI issuing nearly 300,000 NSLs.

While EFF’s petition challenged both NSL powers, the court’s order fundamentally rests on the procedural problems with the gag provision.  As written, the statute authorizes the FBI to gag an NSL recipient, indefinitely and without the need for any court oversight.  As the court found, this violates the Supreme Court’s First Amendment procedural requirements demanded where the government seeks to impose a prior restraint.  Under the Supreme Court’s 1965 Freedman vs. Maryland decision, a case evaluating a Maryland licensing scheme that required films to be evaluated by a government ratings board prior to public showings, a statute must must be designed to ensure that any person who is gagged gets a quick, fair opportunity to challenge that decision, specifically:

1. the burden must fall on the government to go to court to obtain approval for any gag

2. the pre-review gag must be strictly limited in time, and

3. the time in which a reviewing court must make its determination must be set to “short fixed period compatible with sound judicial resolution.”

The court found that the NSL statute plainly fails the Freedman test: the FBI can gag an NSL recipient on its own and without any judicial review, the statute does not force the government to initiate the review in the event that a recipient objects, and there are no requirements that a challenge be promptly heard or evaluated.  Just as in the Freedman case, the court here noted that the FBI was institutionally inclined to gag NSL recipients, and the statute improperly stacked the deck against NSL recipients if they chose to challenge the gag.

The unconstitutionality of the nondisclosure provision proved fatal to the statute:  the court further determined that as the statute was not severable (i.e., that Congress did not intend that either provision could survive independently), the entire statute must be struck down, including the FBI’s ability to demand customer records.  Statistics cited by the court backed the court’s severability conclusion:  97% of all NSLs are delivered with a gag provision.

While the court’s order was sweeping, little will change for the moment.  The court stayed its order for a 90 day period in which the government will likely file an appeal and seek a further stay until the Court of Appeals issues its own ruling.  For the moment, however, Judge Illston has given enormous support to critics of all stripes who have long argued that such an invasive, unchecked grant of power to the FBI was not justified and had to go.