In re National Security Letter
- 2012 Democrat Platform Endorses Internet Privacy: The 2012 Democratic National Platform supports the administration’s Internet Privacy Bill of Rights to protect consumer privacy. Separate provisions in the platform call for privacy protections for broadband deployment, intellectual property enforcement, and cybersecurity laws; the Democratic platform opposes voter identification laws. However, the platform is silent on the Fourth Amendment, and retreats from the 2008 Democratic platform that opposed surveillance of individuals that were not suspected of a crime. In 2008, Candidate Obama promised to "strengthen the privacy protections for the digital age and to harness the power of technology to hold government and business accountable for violations of personal privacy.” The 2012 Republican Platform was released last week. The Libertarian and Green Party platforms are also available. For more information, see EPIC: Privacy and Consumer Profiling, EPIC: Voter Photo ID and Privacy, EPIC: National Security Letters, and EPIC: Cybersecurity Privacy Practical Implications. (Sep. 4, 2012)
- 2011 FISA Orders Up, National Security Letters Down, No Surveillance Request Denied: According to the 2011 Foreign Intelligence Surveillance Act (FISA) Report the Justice Department submitted 1,745 applications to the Foreign Intelligence Surveillance Court, a 10.5% increase over 2010. Of the 1,745 FISA search applications, 1,676 concerned electronic surveillance. The FISA court did not deny any applications, though it did modify 30 applications. Also in 2011, the FBI made 16,511 National Security Letter requests for information pertaining to 7,201 different U.S. persons. This is a substantial decrease from the 24,287 national security letter requests concerning 14,212 U.S. persons in 2010. The annual report on FISA, released by the Department of Justice, is far less extensive than the annual wiretap report, produced by the Administrative Office of the US Courts. EPIC has recommended greater accountability for the FISA Court. For more information, see: EPIC: Foreign Intelligence Surveillance Act Court Orders 1979-2011 and EPIC: Foreign Intelligence Surveillance Act. (May. 4, 2012)
- Senator Leahy Urges Attorney General to Implement Patriot Act Reforms: Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) has sent a letter to Attorney General Eric Holder regarding key privacy safeguards for the PATRIOT Act. The Senate Judiciary Committee passed the PATRIOT Act Sunset Extension Act earlier in the year, which included many reforms, but the full Senate did not act on the measure Because the administration supported the reforms within the bill, Sen. Leahy advised the Attorney General that he can voluntarily adopt many of the reforms even without Congressional action. Senator Leahy expressed particular concern about the possible misuse of National Security Letter authority. Attorney General Holder will appear before the Senate Judiciary Committee on Wednesday, April 14, 2010 for an oversight hearing. For more information, see EPIC: National Security Letters. (Apr. 14, 2010)
- Inspector General Finds "Egregious Breakdown" in FBI Oversight: The Department of Justice Office of the Inspector General has issued a report on the FBI's use of "exigent letters" and other means to obtain telephone records from three unnamed phone companies. The 300-page report concludes that many of the FBI's practices "violated FBI guidelines, Department policy," and the Electronic Communications Privacy Act. The report also found that "the FBI sought and acquired reporters' telephone toll billing records and calling activity information" through improper means. The report concludes that "the FBI's initial attempts at corrective action were seriously deficient, ill-conceived, and poorly executed" and makes several recommendations for improvement. In a 2007 letter to the Senate Judiciary Committee, EPIC recommended that the FBI's National Security Letter authority be repealed. For more information, see EPIC National Security Letters. (Jan. 21, 2010)
- House Members Introduce PATRIOT and FISA Reform Bills: Representatives Conyers, Nadler, and Scott introduced two bills today that would amend the PATRIOT Act and the Foreign Intelligence Surveillance Act. The Patriot Amendments Act of 2009 will enhance reporting and judicial oversight of law enforcement powers, including the National Security Letter process. The FISA Amendments Act of 2009 will place new limits on the government's ability to collect and store Americans' communications without a warrant and repeals retroactive immunity. For more information, see EPIC FISA, EPIC PATRIOT Act. (Oct. 20, 2009)
- PATRIOT Act Revisions Introduced in Senate: Today, Sen. Russ Feingold (D-WI) and seven cosponsors introduced the Judicious Use of Surveillance Tools In Counterterrorism Efforts (JUSTICE) Act. The bill would amend the PATRIOT Act, the FISA Amendments Act, and other surveillance and intelligence laws. Among other changes, the JUSTICE Act would reform the National Security Letter process, revise the guidelines for business records orders, eliminate the catch-all provision for "sneak-and-peek" searches, and add new safeguards for FISA roving wiretaps. The JUSTICE Act would also repeal retroactive immunity for telecommunications companies, and is supported by many civil liberties organizations. For more information, see EPIC USA PATRIOT Act, EPIC FISA, EPIC Wiretapping, and EPIC National Security Letters. (Sep. 17, 2009)
- Senators Consider PATRIOT Act Reforms: Senators Russ Feingold (D-WI) and Dick Durbin (D-IL) are drafting legislative reforms to revise the USA PATRIOT Act. The USA PATRIOT Act allows authorities to conduct surveillance without judicial review through the use of National Security Letters. The Senators asked the Attorney General and the Chairmen of the Senate Judiciary and Intelligence Committee to consider two previous bills that add protections to PATRIOT ACT. Pursuant to a EPIC lawsuit, a federal judge had ordered the Justice Department to provide for independent judicial inspection of documents relating to warrantless wiretapping. For more information, see EPIC USA PATRIOT Act, EPIC FISA, EPIC Wiretapping, and EPIC National Security Letters. (Aug. 7, 2009)
- Inspector Generals Release Report on President's Surveillance Program: The Inspector Generals of the Intelligence Community released a report on the President's Surveillance Program. The report summarizes the unclassified collective results of the reviews. The Program involved the massive, warrantless surveillance of Americans in the United States. The IG Report finds that the absence of effective oversight contributed to the ineffectiveness of the program. In December 2005, EPIC had requested the legal opinions that were prepared to justify the program. The government has refused to produce many key documents, and EPIC sued under the Freedom of Information Act. In March this year, the Attorney General released several related memos, which previously were secret, following President Obama's statement on government transparency. See EPIC FISA, EPIC Surveillance FOIA, EPIC Wiretapping, and EPIC National Security Letters. (Jul. 10, 2009)
- FBI's Use of FISA Increasing: In a report to Congress, the Justice Department revealed a substantial increase in the use of National Security Letters to acquire information on American citizens without court order. In 2008, the FBI made 24,744 NSL requests pertaining to 7,225 persons compared to 16,804 requests pertaining to 4,327 persons in 2007. The report also detailed 2,082 applications by the FBI to the Foreign Intelligence Surveillance Court for authority to conduct surveillance and physical searches. An earlier audit had revealed that some "blanket-NSLs" did not document the relevance of the information sought to a national security investigation and the statistics were not reported to the Congress. For more information, see EPIC's Page on Foreign Intelligence Surveillance Act, National Security Letters, and Wiretapping. (May. 20, 2009)
The Federal Bureau of Investigation (FBI) issued a national security letter (NSL) to an unnamed telecommunications provider seeking "subscriber information." In response, the Electronic Frontier Foundation (EFF), on behalf of the letter's recipient, brought a challenge to the FBI's authority to issue the letter. In its petition, EFF requested that both the FBI's authority to issue NSLs and its gag order served on the recipient be declared unconstitutional under the First Amendment.
The case was filed in the Northern District of California and was decided on March 14, 2013. Judge Illston's opinion held that the nondisclosure provisions burdened speech beyond that allowable in the Constitution—because the government could not show that a blanket prohibition on disclosure of receipt of a National Security Letter furthered the government's interest in national security, the provisions were not sufficiently narrowly tailored. Judge Illston additionally held that the standards of review in the National Security statute impermissibly limited a court's ability to review nondisclosure orders. The case is In re Nat'l Sec. Letter, 930 F. Supp. 2d 1064.
On May 6, 2013, attorneys for the Department of Justice, Attorney General, and FBI appealed the court's order.
EPIC has been tracking the use of NSLs, including the number of applications included in the annual foreign intelligence surveillance reports by the Attorney General. EPIC has also testified before congressional committees on the need for additional transparency and oversight of national security investigations. NSLs enable the FBI to compel banks, telephone companies, and other entities to disclose Americans' private financial and telecommunications records without any prior court approval. Since the Patriot Act expanded the FBI's authority to issue National Security Letters, the number issued has grown dramatically. Between 2003 and 2006, nearly 200,000 National Security Letters were issued. For more information, see EPIC: National Security Letters.
United States Court of Appeals for the Ninth Circuit
United States District for the Northern District of California
- In re National Security Letter, 930 F. Supp. 2d 1064, 2013 WL 1095417 (N.D. Cal. Mar. 14, 2013)
- Government's Reply in Support of a Motion to Compel
- Petitioner's Opposition to Motion to Compel and Reply in Support of Petition to Set Aside NSL
- Government's Motion to Compel Compliance with NSL
- Memorandum of Points and Authorities in Support of Motion to Compel Compliance with NSL
- Government's Opposition to Petition to Set Aside NSL
- Declaration in Support of Petition to Set Aside NSL (with Redacted NSL)
- Petition to Set Aside NSL
- Memorandum of Points and Authorities in Support of Petition to Set Aside NSL
- Government's Civil Complaint
- Supreme Court and Appellate Court Cases
Relevant Law Review Articles, Reports, and Books
- National Security Letters May Be Unconstitutional, But That's No Reason to Disobey Them, Says Judge, The Guardian, June 1, 2013
- National Security Letters Have Their Day in Court--and Lose, MotherJones, March 16, 2013
- A Federal Judge Lifts the Cone of Silence Over National Security Letters, LA Times, March 15, 2013
- Federal Judge Finds National Security Letters Unconstitutional, Bans Them, Wired, March 15, 2013
- Gagging Recipients of National Security Letters Found Unconstitutional, Ars Technica, March 15, 2013
- National Security Letters Ruled Unconstitutional, Seattle Times, March 16, 2013
- Appeals Court Puts Restrictions on NSL Gag Orders, Ars Technica, December 15, 2012
- Kate Molony, Crowell and Moring E-Discovery Law Insights Gagging the FBI--The Unconstitutionality of National Security Letters, April, 16 2013.
- Pullman and Comley LLC, Cybersecurity, Privacy and Infrastructure Protection Alert, FBI Prohibited from Issuing National Security Letters, 2013.
- Kevin Gosztola, FireDogLake, Court Finds FBI-Issued National Security Letters 'Significantly Infringe Upon Speech', March 16, 2013.