A court in California has ruled an FBI surveillance tactic unconstitutional. The tool involves the administrative issuance of national security letters – a document that allows FBI agents to demand information about customers from internet service providers. Further, the ISPs are not allowed to reveal the fact of the letter itself – even to those who have had their personal information turned over to the FBI.
It is on the grounds of that accompanying gag order that Judge Susan Illston overturned the statute, reasoning that it defied the First Amendment, which protects freedom of speech. The national security letters are not obtained through the court, like most subpoenas. Rather, an FBI supervisor need only find that the records sought are relevant to an authorized national security investigation. No warrant is required.
The FBI has defended the tactic, saying the flexibility it allows is a necessity for preventing future terror attacks in a post-9/11 America. However, several years ago, the Justice Department inspector general found that the need to justify the issuance of a national security letter often goes unfulfilled. Further, questions continue to arise regarding the letters’ accompanying gag order and the vagueness of their enabling statute as to just what type of information can be sought.
According to Justice Department data, 16,500 national security letters were obtained last year. Judge Illston conceded in her ruling that there may be particular investigations where revealing the target of a national security letter could jeopardize the outcome. However, she said, the FBI’s “pervasive use” of the gag order, in combination with a frequent lack of justification, created too large of a risk that speech was being “unnecessarily restricted.”