As the year draws to a close, EFF is looking back at the major trends influencing digital rights in 2013 and discussing where we are in the fight for free expression, innovation, fair use, and privacy. Click here to read other blog posts in this series.
In a banner year, one of EFF's court victories stands out: 2013 is the year EFF took a huge step towards taking out a piece of the USA PATRIOT Act. In the spring, we convinced a federal district judge to strike down as unconstitutional a National Security Letter (NSL) statute. And we got a big vote of support on December 20 when the President’s Review Group on Intelligence and Communications Technologies called for the banning of NSLs in their current form, stating that it was “unable to identify a principled reason why NSLs should be issued by FBI officials” when similar processes must issue from judges.
NSLs, relatively narrow (though still hugely problematic) national security investigative tools when they were created in the 80s, were dramatically expanded by the USA PATRIOT Act in 2001. With an NSL, and without any prior court approval or oversight whatsoever, the FBI can compel entities such as telephone companies, Internet service providers, and banks and other financial institutions to turn over records revealing intimate and possibly constitutionally-protected details about their customers, such as the identities of anonymous online speakers and their associations. Worse yet, again without any court approval, the FBI can indefinitely gag NSL recipients, preventing them from even disclosing that they received one.
In March, in a strong opinion, Senior District Court Judge Susan Illston of the Northern District of California granted EFF’s petition—brought on behalf of an unnamed telephone company—to set aside the challenged NSL. Judge Illston agreed that 18 U.S.C. § 2709, the NSL statute in question, was facially unconstitutional because it granted unilateral power to the FBI to silence NSL recipients and that this unconstitutional gag rendered the entire process unlawful. Judge Illston ordered the FBI to cease both issuing future NSLs as well as enforcing any NSL-related gag orders, but, as is often the case in national security cases, the court stayed its groundbreaking order pending appeal. Briefing for the appeal begins in January.
How important is Judge Illston’s decision? NSLs—now found to be illegal in their entirety by the district court—have been a ubiquitous tool used by the FBI over the past decade, with the FBI issuing over 85 requests each and every day on average, amounting to over 300,000 since the passage of the USA PATRIOT Act. Without a requirement that a court sign off on its exercise of this unprecedented power, and no meaningful transparency built into the system, the FBI has been repeatedly tempted over the years to cut corners and even on occasion to blatantly misuse this extraordinary power.
The FBI has repeatedly argued that NSLs are necessary tools. However, with a wide range of other options under existing laws that permit the FBI to obtain exactly the same information but with court supervision, the government is in essence arguing for the right to collect sensitive information on its own, without anyone looking over its shoulder.
The government is wrong. As the President’s Review Group on Intelligence and Communications Technologies affirmed, such unchecked access to our records is too dangerous and too ripe for abuse. And as Review Group co-author Richard Clarke diplomatically put it later, NSLs are "a little difficult to square with constitutionality."
We agree: NSLs must end. Whether that end comes through litigation or legislation, EFF looks forward to continue fighting NSLs in the new year.
This article is part of our 2013 Year in Review series; read other articles about the fight for digital rights in 2013.