Ninth Circuit Refuses to Decide on Constitutionality of National Security Letters

Published: August 31, 2015 5:01 PM /


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While the issue of mass collection of phone records usually takes center stage when discussion the Patriot Act and USA Freedom Act that replaced it, another critical issue governed by those laws is the matter of National Security Letters. The EFF has been in a long legal battle, in an attempt to push back against the FBI's abuse of NSLs. In a ruling made public last week, the Ninth Circuit Court of Appeals refused to rule on the constitutionality of NSL's because the law governing it was recently changed by the passage of the USA Freedom Act. The Court remanded the case back to a lower court to try the case under the new law.

NSLs are a type of subpoena that allows the FBI to force telecommunications companies to turn over subscriber information about their customers, and also allows the them to place a  gag order on those companies so they cannot tell their customers or the general public that such a request has been made. No court is involved in this process, NSLs are issued on the FBI's own authority.

The EFF is currently representing two unnamed service providers in challenging the NSL statutes. The EFF contends that these gag orders violate their clients' freedom of speech, and are preventing them from fully participating in public discussion regarding these laws. The first amendment requires that the government seek judicial approval before issuing any gag orders, they argue. Another concern is that the gag orders apparently apply without any expiration date, even if the supposed danger that justifies the gag has ended. One of the EFF's clients has been under gag for 2 years and the other for more than 4 years.

The EFF stated in the blog post that they are "extremely dissapointed" with the ruling and criticized the Ninth Circuit for using the "minimal USA FREEDOM Act changes as cause for another delay in considering the constitutionality of NSLs in two of EFF’s flasship cases." They had argued in court that the USA Freedom Act had done very little to change NSLs. The EFF has had both positive and negative comments to make regarding the USA Freedom Act, but ultimately decided that it did little to address the core problems of the Patriot Act. On the topic of NSLs, most of the issues still remain. The FBI can still issue overly broad and non-expiring gag orders without judicial intervention. However, the EFF will still continue its legal fight to bring an end to this authoritarian practice.

Do you think NSLs are unconstitutional? Leave your comment below.


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