We have had much debate over the recent revelations of government domestic spying on American citizens. One of the methods being used is the seizure and subsequent search of all records maintained by telephone and internet companies of American citizen’s usage of these services through the issuance of National Security Letters (“NSL”). This is the foundation of the issues regarding surveilance raised by Mr. Snowden.
An NSL is an administrative subpoena authorized by the Patriot Act that requires certain persons, groups, organizations, or companies to provide documents about certain persons. These documents typically involve telephone, email, and financial records. NSLs also carry a gag order, meaning the person or persons responsible for complying cannot mention the existence of the NSL. Under Patriot Act provisions, law enforcement can use NSLs when investigating U.S. citizens, even when law enforcement does not think the individual under investigation has committed a crime. The Department of Homeland security has used NSLs frequently since its inception. By using an NSL, an agency has no responsibility to first obtain a warrant or court order before conducting its search of records.
In re: National Security Letters; https://www.documentcloud.org/docume...ict-court.html
On March 14, 2013, Judge Susan Illston of the Northern District of California granted EFF's petition, declaring that 18 U.S.C. § 2709 and parts of 18 U.S.C. § 3511 were unconstitutional. Judge Illston held that the statute's gag provision failed to incorporate necessary First Amendment procedural requirements designed to prevent the imposition of illegal prior restraints. Judge Illston also ruled that the statute was unseverable and that the entire statute, also including the underlying power to obtain customer records, was unenforceable. The judge's order was stayed for 90 days to give the government the opportunity to appeal.
Are National Security Letters Constitutional? Do they violate the First Amendment? The Fourth Amendment? Or Both?