Since the first national security letter (NSL) statute was passed in 1986 and then dramatically expanded under the USA PATRIOT Act, 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.
EFF has fought for years to spread awareness of National Security Letters and add accountability and oversight to the process. Beginning in 2011, we brought a set of major constitutional challenges to the NSL statute on behalf of the NSL recipients CREDO and Cloudflare, who were forced to litigate in secret for almost six years. In 2013, we won a landmark victory in the Northern District of California in which Judge Susan Illston declared one of the statutes unconstitutional in one of CREDO's cases.
In response, Congress amended the NSL statute as part of the USA FREEDOM Act in June 2015. In July 2017, the U.S. Court of Appeals for the Ninth Circuit issued an opinion upholding the amended NSL statute against these providers' challenges.
EFF continues to push for NSL reform, including by asking companies to require judicial review of all NSLs. We are also pursuing a FOIA lawsuit for more information about the NSL "Termination Procedures" adopted pursuant to USA Freedom.. This builds on over a decade of FOIA work and other advocacy regarding NSLs. For example, in 2007 EFF filed Freedom of Information Act litigation seeking documentation of National Security Letter misuse by the FBI. Thousands of pages of documents were released over a period of four years leading to repeated revealations of government abuses of power. An EFF report based on these documents led to tough questions for the FBI before Congress. The documents also helped prompt the Senate Judiciary Committee to investigate whether Attorney General Alberto Gonzales lied to Congress. And in 2008 and again in 2016, EFF successfully defended the Internet Archive from inappropriate National Security Letters.