New Disclosures Reflect NSLs’ Substantive First Amendment Flaws

This article first appeared in Just Security.

This year has seen a remarkable string of disclosures about national security letters (NSLs), the secret demands the FBI sends to financial and communications service providers compelling the disclosure of customer information and transactional data. During the last six months, Yahoo!, Google, CREDO Mobile and the Internet Archive have all been able to disclose information related to NSLs they have received. These disclosures shed new light on the FBI’s use of NSLs, but they don’t go far enough to transform this secret, warrantless surveillance into something constitutional.

Using an NSL, the FBI can—without judicial oversight or a court order—demand that a company produce certain categories of information about a user, and that it remain silent about that demand, as long as the agency certifies that the records are relevant to an authorized investigation of international terrorism or clandestine intelligence activities. The FBI can compel service providers to produce information ranging from subscriber information, such as names, dates of service, and payment details, to records of users’ incoming and outgoing phone calls, banking transactions, emails, chat sessions, and so forth. These demands are similar in some respects to other forms of process such as grand jury subpoenas or Foreign Intelligence Surveillance Act orders for the production of business records. 

But two critical features set NSLs apart: NSLs do not require the FBI to obtain any kind of court order or oversight before it demands that companies comply, and the statute permits the FBI to issue its own broad gag orders that prevent recipients from discussing the orders or notifying the user who is targeted. The burden is on recipients to challenge the NSLs and gag orders they receive, and only a small fraction choose to do so.  The process makes it easy for the FBI to obtain sensitive financial and communications records in secret and without judicial review. Because of this lack of oversight, NSLs are both particularly expedient for national security investigators and also particularly vulnerable to abuse, as the Department of Justice Office of the Inspector General has repeatedly documented. And the election of Donald Trump, who has appeared to endorse expansive warrantless metadata surveillance, may presage a new uptick in NSL issuance after several years in which NSL numbers appeared to trend lower.

That a handful of companies have now come forward publicly to announce that they have received NSLs is an incremental step toward transparency in an area that has been radically opaque for over a decade. These new disclosures are the result of reforms in the 2015 USA Freedom Act that make it easier for an NSL recipient to object to, and challenge, an NSL. The new law also required the FBI to adopt new procedures for reviewing and terminating NSL gag orders after three years or after the close of an investigation, which it did last year. (The statutory reforms partly resulted from a 2013 Northern District of California decision that found that the NSL gag provision was unconstitutional and could not be severed from the other portions of the statute.)

But the fundamental failings of the NSL regime remain untouched.  It remains true that the FBI can determine, unilaterally, which NSL recipients to gag, and for how many years—forcing those recipients to choose, like Nick Merrill and CREDO did, between staying silent and asserting their rights in a potentially years-long legal challenge. This isn’t merely a procedural flaw or a nitpicky doctrinal quibble. An FBI-issued demand that recipients of NSLs remain silent has serious substantive effects: it results in exceptionally high rates of compliance, extraordinarily few legal challenges, and almost zero transparency.  And the FBI’s secret demands are to the detriment of users as well, whose own First Amendment rights may be violated when their records are disclosed. When the FBI secretly compels companies to produce records that show customers’ associations with religious or political groups, or that illustrate the relationship between a journalist and her confidential source, it may violate the First Amendment rights of the user—but the target has neither the practical ability nor the legal right to challenge the FBI’s demand.

Nor is there any reason for public confidence in the NSL regime. In June, the Intercept published a leaked portion of the FBI’s handbook that shows that the agency can use NSLs to obtain information related to journalists’ communications without oversight by a court or the Department of Justice. Congress has repeatedly considered changing the NSL statute in order to permit the FBI to obtain “electronic communications transactional records” such as location data and web browsing history—information that can reveal First Amendment-protected political, religious, and expressive activity. Considering how the FBI might deploy these procedures under President Trump, who has expressed hostility to a bevy of First Amendment rights, is galling.

True, the new rules are an improvement. The original version of the statute was so broad that it appeared to create criminal liability for NSL recipients who consulted counsel about their legal rights and obligations. Recipients who chose to challenge the letters fought anonymously in years-long legal battles for the right to acknowledge the mere fact that the FBI had issued a legal demand. Today, by contrast, the USA Freedom Act’s reforms made it easier and faster for the Internet Archive to tell the FBI it intended to challenge the NSL it received; the FBI has also chosen to review and terminate several NSLs, including those to Google and Yahoo!, using its new procedures. These changes did not come out of thin air: statutory reforms were only enacted after several court decisions finding the NSL authority, as written, constitutionally deficient. Despite having taken place in only a tiny fraction of NSL cases, judicial review has been an essential tool for checking abuse and increasing transparency and accountability for NSL usage.

Information about NSLs is flowing more freely than ever before, but the new disclosures illustrate the limits of the most recent reforms. Secrecy and the absence of judicial review make the NSL particularly effective—and particularly ripe for abuse. NSLs epitomize the presumption that FBI is entitled to operate in the dark and without oversight, even when it seeks access to records of political, religious, and journalistic association and expression. Without reversing that presumption, NSLs will continue to jeopardize the constitutional rights of users and NSL recipients alike.