Court Limits, But Doesn't Eliminate, Secrecy Of National Security Letters
from the partial-win dept
The Patriot Act, among other things, allows law enforcement to issue “National Security Letters” to ISPs and telcos to obtain certain information about individuals. The letters are, as the name implies, designed for situations where national security is at stake, and a more thorough process of going through legal channels to gain approval would be a serious threat to national security. Except, of course, that’s not how things have worked in practice. The FBI was found to have engaged in “serious misuse” of NSLs on a regular basis, issuing tens of thousands of them. Even worse, part of the rules surrounding NSLs are that they must be kept entirely secret. This raises very serious First Amendment questions. While a lower court agreed that the secrecy on NSLs violated the Constitution, an Appeals Court, that had initially seemed skeptical has allowed the secrecy to continue, though with some limitations.
Rather than saying secrecy was okay, if revealing the NSL would create “interference with diplomatic relations, or danger to the life or physical safety of any person” (the old rule), the court has said the rule should be that secrecy is allowed if revealing the NSL “may result in an enumerated harm that is related to an authorized investigation to protect against international terrorism or clandestine intelligence activities.” It is certainly more of a limitation, though some may note that it may not make much of a difference in actual application. NSLs are still likely to be abused, and it’s unlikely that most ISPs or telcos on the receiving end of such NSLs will feel concerned enough to challenge them.