5 Things to Know About FBI National Security Letters - California Case Law
California Case Law - The FindLaw California Supreme Court and Courts of Appeal Opinion Summaries Blog

5 Things to Know About FBI National Security Letters

Here at FindLaw, we understand the pressures of being a legal professional -- most of us are recovering lawyers -- so we want to help by tossing you that preferred life preserver of the legal profession, the short list. Today's offering: National Security Letters.

National Security Letters are the "Fight Club" of legal documents. The first rule of National Security Letters is: Do not talk about National Security Letters. But that's changing. On Friday, U.S. District Judge Susan Illston in San Francisco ordered the government to stop issuing NSLs, though she tempered that order with a 90-day stay to give the feds a chance to appeal, Wired reports.

Before the appeal happens, here are five things you should know about NSLs:

  1. Shh... They're secret! The Electronic Privacy Information Center (EPIC) explains that an NSL is an extraordinary search procedure which gives the FBI the power to compel the disclosure of customer records held by banks, telephone companies, Internet Service Providers, and others. These entities are prohibited, or "gagged," from telling anyone about their receipt of the NSL, which makes oversight difficult. That's why you probably haven't had a client stroll into your office and say, "I got a National Security Letter! What do I do now?"
  2. Mining the numbers. Though EPIC says that the number of NSLs issued "has grown dramatically since the Patriot Act expanded the FBI's authority to issue them," Justice Department reports tell a different story. According to the DOJ, the number of issued NSLs peaked in 2004 with 56,507 letters, and dropped to an all-time low in 2009 with 14,788. In 2011, the most recent year in the report, there were 16,511 NSLs. Wired reports that 97 percent of NSLs were issued with nondisclosure orders.
  3. Who snitched? An unnamed telecommunications company challenged the provision after it received an NSL demanding "subscriber information" from the company, and warned that the letter's disclosure could result "in a danger to the United States," among other ramifications, Reuters reports. According to Judge Illston's opinion, the company was "adamant about its desire to speak publicly about the fact that it received the NSL at issue to further inform the ongoing public debate" about the letters.
  4. The ruling. The Electronic Frontier Foundation, which represented the telecom, explains: The court held that the gag order provisions of the statute violate the First Amendment and that the review procedures violate separation of powers. Because those provisions were not separable from the rest of the statute, the court declared the entire statute unconstitutional.
  5. The caveat. Judge Illston wrote that the government's arguments weren't entirely absurd. "The government has a strong argument that allowing the government to prohibit recipients of NSLs from disclosing the specific information sought in NSLs to either the targets or the public is generally necessary to serve national security in ongoing investigations. However, the government has not shown that it is generally necessary to prohibit recipients from disclosing the mere fact of their receipt of NSLs."

Related Resources: