Notebook Entry: “[National Security Letter] court decision”

NSL court decision — In mid-March, a Federal district court judge in California ruled the use of “national security letters” to be unconstitutional (Wall Street Journal story here). NSL’s are letters issued by the FBI, without prior judicial approval, that require telecommunications companies to provide data to the government. There are two major issues with the use of NSL’s. One is that a “gag order” is frequently part of an NSL, i.e. a telecom that receives an NSL is legally barred from telling anyone about it. The second issue is that NSL’s can be issued solely on the grounds that a telecom may have information related to a national security investigation; unlike many of the other post-September 11 electronic intelligence gathering measures that have garnered public scrutiny, there is no requirement that the communications covered by an NSL be reasonably believed to be outside of the borders of the United States (more on NSL’s from the ABA Journal here). The lower standard is often defended on the basis of NSL’s not allowing access to the content of communications (see page CRS-10 here), but only to information about who’s talking to whom, which arguably belongs as much to the 3rd-party network as it does to its users.
The district court judge based her ruling on the first issue alone; she found the gag order provision to be unconstitutional and therefore the entire NSL process to be unconstitutional, without specifically ruling on any of its other aspects. The government is expected to appeal the ruling to the Ninth Circuit Court of Appeals.

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