SAN FRANCISCO — They’re called national-security letters and the FBI issues thousands a year to banks, phone companies and other businesses demanding customer information. They’re sent without judicial review and recipients are barred from disclosing them.
A federal judge in San Francisco on Friday declared the letters unconstitutional, saying the secretive demands for customer data violate the First Amendment.
The government has failed to show the letters and the blanket nondisclosure policy “serve the compelling need of national security,” and the gag order creates “too large a danger that speech is being unnecessarily restricted,” U.S. District Judge Susan Illston wrote.
She ordered the FBI to stop issuing the letters, but put that order on hold for 90 days so the U.S. Department of Justice can pursue an appeal to the 9th U.S. Circuit Court of Appeals.
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The DOJ said it is reviewing the decision.
FBI counterterrorism agents began issuing the letters after Congress passed the USA Patriot Act after Sept. 11, 2001, attacks.
To issue a national-security letter, a supervisor need only certify that the records sought are relevant to an authorized national-security investigation. No warrant is required. FBI officials have said such flexibility is crucial to preventing attacks.
But the letters have been controversial. The Justice Department inspector general found several years ago that the FBI abused its authority to issue the letters, often failing to justify the need for the surveillance.
The case arises from a lawsuit that lawyers with the Electronic Frontier Foundation filed in 2011 on behalf of an unnamed telecommunications company that received an FBI demand for customer information.
“We are very pleased that the court recognized the fatal constitutional shortcomings of the NSL statute,” foundation lawyer Matt Zimmerman said.
Illston wrote that she also was troubled by the limited powers judges have to lift the gag orders. Judges can eliminate the gag order only if they have “no reason to believe that disclosure may endanger the national security of the United States, interfere with a criminal counterterrorism, or counterintelligence investigation, interfere with diplomatic relations, or endanger the life or physical safety of any person.”
That provision also violated the Constitution because it blocks meaningful judicial review, she wrote.
Illston isn’t the first federal judge to find the letters troubling. The 2nd U.S. Circuit Court of Appeals in New York also found the gag order unconstitutional but allowed the FBI to continue issuing the letters if it made changes, such as notifying recipients they can ask federal judges to review the letters.
The FBI made 16,511 national-security-letter requests for information regarding 7,201 people in 2011, the latest data available. The FBI uses the letters to collect unlimited kinds of sensitive, private information, such as financial and phone records.
Material from The Washington Post is included in this report.