Last week, we brought you the wonderful news that a district court in San Francisco had struck down the law that allowed the FBI to issue its own "National Security Letters" (NSLs) — secret search-warrants with permanent gag orders. Now, Matt Zimmerman, a senior staff attorney at the Electronic Frontier Foundation (who brought the case on behalf of an unnamed telco), explains in depth what EFF asked the court to recognize, how far they got, and what happens next:
The court made five critical findings. First, Judge Illston quickly rejected the government's dangerous argument that NSL recipients had no power to review the constitutionality of the statute. The government had suggested that the court could only review specific problems with specific NSLs, meaning that larger structural problems with the statute would remain untouched. As the court correctly noted, however, the statute specifically allows a court to determine whether an NSL is "unreasonable" or "unlawful" which includes determining whether the statute itself is unconstitutional.
Second, the district court found that the statute impermissibly authorizes the FBI to limit speech without constitutionally-mandated procedural protections. The Supreme Court articulated the scope for such protections in 1965 in Freedman vs. Maryland, a case in which it struck down a Maryland licensing scheme that required films to be submitted to a government ratings board prior to public showings. The problem with the statute wasn't necessarily its substantive reach as it was possible that films could be banned without violating the First Amendment — if, for example, they met the First Amendment definition of "obscene." Instead, the court was concerned that the procedures for challenging a ban stacked the deck against theater owners…
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Fourth, the district court found that the statute was not "severable," meaning that Congress designed the NSL tool as a whole and that the powers it granted to the FBI were not intended to function separately if one of the powers was found to be unconstitutional. Because the nondisclosure provision was found to be unconstitutional on its face, the power to compel the disclosure of customer records must also fall. NSL statistics are consistent with this observation: 97% of all NSLs are delivered with a gag order.
Finally, the district court found that, regardless of other failings, the statute's standard of review violated separation of powers principles by forcing the courts to defer to the FBI's determinations and preventing independent review. It noted that a "[c]ourt can only sustain nondisclosure based on a searching standard of review." While courts do largely defer to the executive branch's judgment in national security matters, the standard in this statute required the court to consider the government's decision "conclusive" and only allowing the court to consider whether it was made in "bad faith." The court rightly noted that real judicial review requires more.
In Depth: The District Court's Remarkable Order Striking Down the NSL Statute
