"National Security Letters" Are Unconstitutional

A Federal court ruled that the Patriot Act's National Security Letter (NSL) provision, 18 U.S.C. § 2709 is unconstitutional. § 2709 authorizes the FBI to issue NSLs to request information about an Electronic Communications Service Provider's client (ECSP). The ECSP "shall comply" with such request, and is required to provide records such as "subscriber information" or "electronic communication transactional records."The Federal court noted that there were approximately 39,000 NSL demands made by the FBI in 2003, 56,000 in 2004, and 47,000 in 2005.

The Court used the strict scrutiny standard to review the statute, as it is prior restraint and content-based restriction.

The Federal Court rules that § 2709 (c) is unconstitutional:

No 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.

Because this provision cannot be severed from the statute, section 2709 as a whole was declared unconstitutional.

According to the Court, the "government's use of non disclosure orders must be narrowly-tailored on a case-by-case basis. That is, a nondisclosure order may not be broader in either scope or duration than the degree of secrecy required to serve the government's interest in protecting national security." Also, "the nondisclosure orders must be subject to meaningful judicial review." The Court was also troubled by the fact that the standard of review the courts must apply when a nondisclosure order is challenged offends the principles of checks and balances and separation of powers.