San Francisco - The Electronic Frontier Foundation (EFF) filed two briefs on Friday challenging secret government demands for information known as National Security Letters (NSLs) with the Ninth Circuit Court of Appeals. The briefs—one filed on behalf of a telecom company and another for an Internet company—remain under seal because the government continues to insist that even identifying the companies involved might endanger national security.
While the facts surrounding the specific companies and the NSLs they are challenging cannot be disclosed, their legal positions are already public: the NSL statute is a violation of the First Amendment as well as the constitutional separation of powers.
“The NSL statute allows the FBI to demand potentially protected information without any court oversight,” EFF Senior Staff Attorney Matt Zimmerman said. “Furthermore, it permits the FBI to independently gag recipients so that NSL recipients like our clients have no ability to notify their customers or the public that any demands were made, let alone that they went to court to stop them. Our clients strongly desire to bring their unique perspectives to the ongoing national discussion on intrusive government spying, and they have timely and relevant information to contribute to that debate. However, the FBI’s unconstitutional NSL authority prevents these companies from exercising their rights and taking part in this critically important conversation.”
In March 2013 a federal district court judge in San Francisco agreed with EFF and ruled the NSL provisions unconstitutional, barring future NSLs and accompanying gag orders. That ruling was stayed pending appeal, however, and the district court has subsequently enforced separate NSLs—including NSLs issued to both EFF clients—and indicates that it will continue to do so until the Ninth Circuit rules on EFF’s challenges.
“The fight over NSLs and the government’s dangerous practice of bypassing meaningful review by the judicial branch is not an academic one—real people and real companies are involved, battling for their constitutional rights and the rights of their users,” Zimmerman said. “The district court was right: the First Amendment prevents the FBI from engaging in such invasive, secretive, and unaccountable activities. We are eager to explain to the Court of Appeals why it should come to the same conclusion.”
EFF also recently re-launched its Frequently Asked Questions page on National Security Letters. Read it at: https://www.eff.org/issues/national-security-letters-faq
For more on the National Security Letter cases: https://www.eff.org/cases/re-matter-2011-national-security-letter
Senior Staff Attorney
Electronic Frontier Foundation