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Through NSLs the FBI can compile vast dossiers about innocent people and obtain sensitive information such as the web sites a person visits, a list of e-mail addresses with which a person has corresponded, or even unmask the identity of a person who has posted anonymous speech on a political website. The provision also allows the FBI to forbid or "gag" anyone who receives an NSL from telling anyone about the record demand. Since the Patriot Act was authorized in 2001, further relaxing restrictions on the FBI's use of the power, the number of NSLs issued has seen an astronomical increase. The Justice Department's Inspector General has reported that between 2003 and 2006, the FBI issued nearly 200,000 NSLs. The inspector General has also found serious FBI abuses of the NSL power.
The ACLU has challenged this Patriot Act statute in court in three cases. The first, called Doe v. Holder, involves an NSL served on an Internet Service Provider. In September 2007 a federal court struck down the entirety of the National Security Letter (NSL) provisions of the Patriot Act. Judge Victor Marrero of the Southern District of New York ruled that the NSL statute's gag provisions violate the First Amendment and the principle of separation of powers. In December 2008, the U.S. Court of Appeals for the Second Circuit upheld this decision in part, finding the portions of the statute violated the First Amendment; specifically the sections that wrongly placed the burden on NSL recipients to challenge gag orders; narrowly limited judicial review of gag orders; and required courts to defer entirely to the executive branch. The appeals court also ruled that the government must now justify the more than four-year long gag on the "John Doe" NSL recipient in the case.
The second case, called Library Connection v. Gonzales, involved an NSL served on a consortium of libraries in Connecticut. In September 2006, a federal district court ruled that the gag on the librarians violated the First Amendment and the government ultimately withdrew both the gag and its demand for records.
The third case, called Internet Archive v. Mukasey, involved an NSL served on a digital library. In April 2008, the FBI withdrew the NSL and the gag a part of the settlement of a legal challenge brought by the ACLU and the Electronic Frontier Foundation.
In addition, the ACLU has filed a number of Freedom of Information Act (FOIA) request to learn more about the government's use of NSLs. In 2003, the ACLU filed a FOIA request seeking information about the FBI's use of NSLs and after filing a lawsuit succeeded in obtaining a number of key documents. In April 2007, the ACLU filed a FOIA request seeking information about the Department of Defense and CIA's use of National Security Letters. After filing a lawsuit, the ACLU received over 500 documents from its request. In November 2007, the ACLU filed another FOIA request with the FBI seeking information about the FBI's issuance of NSLs at the behest of other agencies. After filing a lawsuit, the ACLU obtained the documents they were seeking. (More >>)
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NSL ABUSES
> Roadmap of Justice Department Review of the FBI's Use of NSLs
> National Security Letters by the Numbers
> 5 Myths About the Bush Administration's Use of NSLs
> 12 Questions Congress Needs to Ask
> ACLU Analysis and Recommendations (3/9/2007)
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