Since the first national security letter (NSL) statute was passed in 1986, the FBI has issued hundreds of thousands of such letters seeking the private telecommunications and financial records of Americans without any prior approval from courts. In addition to this immense investigatory power, NSL statutes also permit the FBI to unilaterally gag recipients and prevent them from criticizing such actions publicly. This combination of powers -- to investigate and to silence -- has coalesced to permit the FBI to wield enormous power and to operate without meaningful checks, far from the watchful eyes of the judicial branch. Not surprisingly, this lack of checks has contributed to a dramatic expansion in the use of these tools across the country. Indeed, for the period between 2003 and 2006 alone, almost 200,000 requests for private customer information were sought pursuant to various NSL statutes. Prior to 2011, the constitutionality of this underlying legal authority to investigate the records of Americans without court oversight was challenged in court -- as far as we know -- exactly one time.
In 2011, EFF brought a major new challenge to one of the NSL statutes on behalf of a telecommunications company that received an NSL earlier that year. Not only does this briefing show that the Department of Justice continues to strongly protect the FBI's NSL authority, it highlights a startlingly aggressive new tactic used by the Department of Justice: suing NSL recipients who challenge the FBI's authority, arguing that court challenges to such authority themselves amount to breaking the law. The petition, which asked the district court to declare both the FBI's underlying authority to obtain customer records without a warrant as well as the gag order unconstitutional, was argued in the federal district court for the Northern District of California in November of 2011.
On March 14, 2013, Judge Susan Illston of the Northern District of California granted EFF's petition, declaring that 18 U.S.C. § 2709 and parts of 18 U.S.C. § 3511 were unconstitutional. Judge Illston held that the statute's gag provision failed to incorporate necessary First Amendment procedural requirements designed to prevent the imposition of illegal prior restraints. Judge Illston also ruled that the statute was unseverable and that the entire statute, also including the underlying power to obtain customer records, was unenforceable.
Subsequently, in two other NSL challenges brought by EFF in 2013, the district court ruled that EFF’s clients had comply with the NSLs they received, notwithstanding the fact that it had already struck down the NSL statute on constitutional grounds in EFF's first NSL case.
All three NSL cases were appealed United States Court of Appeals for the Ninth Circuit in January 2014. After briefing of the appeal and oral argument but before the Ninth Circuit could issue an opinion, Congress passed the USA FREEDOM Act in June 2015, which amended the NSL statute. The Ninth Circuit found that changes made by the USA FREEDOM Act required a new review and sent the cases back to Judge Illston in the district court.
In March 2016, Judge Illston ruled that the USA FREEDOM Act sufficiently addressed the facial constitutional problems with the NSL statute. However, in one of the three other consolidated cases (brought in 2013), the court found that the FBI had failed to provide a sufficient justification for gagging EFF’s client. That ruling was stayed pending the government’s appeal. After the government dropped its appeal of that ruling in November 2016, EFF’s client case number 13-80089 was able to reveal itself as CREDO Mobile.
EFF appealed Judge Illston’s ruling back to the Ninth Circuit, where all three cases were consolidated. Briefing is ongoing as of November 2016.