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Court Strikes Down FBI “National Security Letters” for Second Time

September 10, 2007

A Federal District Court has held the entirety of 18 U.S.C. § 2709, Counterintelligence Access to Telephone Toll and Transactional Records, to be unconstitutional.  This decision will remove the ability of the FBI to obtain information from wire and electronic communications service providers (which include Internet, telecommunications and VoIP providers) through the use of National Security Letters (“NSLs”).  Citing the impact of its decision on national security, the court stayed its decision for 90 days to give the government time to appeal and/or seek protection for the confidentiality of NSLs already issued.  Doe v. Gonzales, 04 Civ. 2614(VM) (S.D.N.Y., Sept. 6, 2007).

This is the second time key provisions of a statute authorizing NSLs has been struck down on constitutional grounds. On September 28, 2004 the same court invalidated similar provisions on First and Fourth Amendment grounds.  Doe v. Ashcroft, 334 F. Supp. 2d 471.  Another Federal District Court in Connecticut followed suit.  In response to these decisions, Congress passed the USA Patriot Improvement and Reauthorization Act of 2005, Pub. L. No 109-177 (Mar. 9, 2006) in an attempt to cure the constitutional deficiencies.  In light of the changes, the Second Circuit remanded the case to the District Courts, which lead to this most recent decision.

At the core of the current 103 page decision was the nondisclosure provision (§2709(c)) that provides that “[n]o wire or electronic communication service provider, or officer, employee or agent thereof, shall disclose to any person that the Federal Bureau of Investigation has sought or obtained access to information or records under this section.”  The Court found that the statutory mandate to keep the FBI’s use of NSLs secret was an impermissible prior restraint.  None of the government’s justifications were narrowly tailored to advance a compelling government interest.  Moreover, if the government is granted a license to restrict speech, it must contain “narrow, objective and definite standards to guide the licensing authority.”  The Court stated that even a claim of “a danger to national security” fails to provide such a narrow, objective and definitive standard.  Finally, the Court refused to recognize Congress’ attempt to change the court’s standard of review as a violation of the separation of powers. 

The nondisclosure provisions are, in the Court’s opinion, not severable from the rest of the provisions governing issuance of NSLs in sections 2709(a) and (b), and as a consequence they too were also invalidated. 

NSLs have dramatically increased in volume since the Patriot Act was first passed.  The Office of the Inspector General (“OIG”) reported that the FBI issued approximately 8,500 NSL requests in 2000, prior to the Patriot Act.  The numbers increased to approximately 56,000 in 2004 and 47,000 in 2005, with actual numbers likely higher as the OIG noted that the FBI databases were missing certain NSL requests. 

Because the Court stayed its decision, the way in which electronic communication service providers respond to NSLs is not impacted for the next 90 days.  After that, absent a Congressional response or further action by the courts, providers should carefully consider the implications of future compliance with NSLs or NSL-type requests.  Any such compliance would best be viewed as voluntary cooperation with non-statutorily authorized information disclosures and have the correlating implications for legal, privacy and public relations issues.

We would be pleased to respond to any questions regarding this matter.

 

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