San Francisco - The Electronic Frontier Foundation (EFF) along with the National Security Archive urged a federal appeals court Wednesday to strike down the National Security Letter (NSL) provision of the Electronic Communications Privacy Act.

The federal surveillance law, as expanded by the PATRIOT Act, allows the FBI to use NSLs to get private records about people's communications without any court approval, as long as it claims the information could be relevant to a terrorism or espionage investigation. The FBI also has broad discretion to place recipients of NSLs under indefinite gag orders, barring them from saying anything about the demands.

A federal judge has already found that the NSL statute is unconstitutional, but the government appealed the ruling. In an amicus brief filed Wednesday, EFF and the National Security Archive argue that the excessive secrecy surrounding the use of NSLs undermines government accountability and enables widespread misuse of authority.

"The Justice Department's internal watchdog has documented the FBI's systematic, Bureau-wide misuse of NSLs," said EFF Staff Attorney Marcia Hofmann. "NSL gag orders aren't just an unconstitutional restriction on free speech -- they also allow problems like these to fester and grow."

This week is national Sunshine Week, a non-partisan initiative to celebrate the principles of open government. Both EFF and the National Security Archive work to uncover information on government matters of public interest, as openness proves to be a check against government abuses.

"The FBI's ability to issue gag orders without meaningful judicial oversight means there is no check on overreaching by the FBI," said National Security Archive Staff Counsel Kristin Adair. "This kind of secrecy does not make us safer. It simply allows the government to cover up abuses and mistakes."

For the full amicus brief:

For more on Sunshine Week:

For more on EFF's work on NSL misuse:


Marcia Hofmann
Staff Attorney
Electronic Frontier Foundation

Kristin Adair
Staff Attorney
National Security Archive