Judge Strikes Down FBI Use of NSLs

By Swartz, Nikki | Information Management, November-December 2007 | Go to article overview

Judge Strikes Down FBI Use of NSLs


Swartz, Nikki, Information Management


In September, a federal judge struck down controversial parts of the USA PATRIOT Act (Patriot Act) that had allowed the Federal Bureau of Investigation (FBI) to use national security letters (NSLs) to secretly demand individuals' and companies' information without a search warrant.

The Patriot Act had given the FBI enhanced powers to issue NSLs, a form of administrative subpoena that allows agents in counterterrorism and counterintelligence investigations to secretly access Americans' phone, bank, credit, and Internet records without a court order or a grand jury subpoena. In almost all cases, recipients are forbidden to disclose that they have received an NSL, even to close family and friends, unto perpetuity.

U.S. District Judge Victor Marrero ordered the FBI to stop issuing the letters because, he ruled, doing so violates the First Amendment and the Constitution's separation of powers provision in that NSL recipients are prohibited from revealing their existence and there is not adequate judicial oversight of the process, according to The Washington Post.

The federal court ruled that because the gag provisions cannot be separated from the amended statute, the court was compelled to strike down the entire statute.

The case, Doe v. Gonzales, was originally filed by the American Civil Liberties Union (ACLU) in April 2004 on behalf of an anonymous Internet access company that had received an NSL. Although the FBI has since dropped its NSL demand, "John Doe" has remained under a gag order.

A March report from the Justice Department's inspector general revealed that the FBI issued about 143,000 records requests using NSLs between 2003 and 2005. According to the New York Times, the report also found that the bureau had often used the letters improperly and sometimes illegally. More than 19,000 were issued in 2005 alone, asking for 47,000 pieces of information from telecommunications companies, the Post reported.

[ILLUSTRATION OMITTED]

In his recent 106-page ruling, Marrero said the NSL provision could be a slippery slope, first in a series of intrusions into the judiciary's role that would be "the legislative equivalent of breaking and entering, with an ominous free pass to the hijacking of constitutional values," the Times reported. …

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