A California federal court has ruled that a tool the FBI widely used for surveillance, to obtain data on Americans without the need of oversight by the court, is unconstitutional. The court said the gag order that goes along with it violated the Constitution’s First Amendment.
Judge Susan Illston made the ruling, which will bar any further issuance of “national security letters,” which are a type of administrative subpoena. The judge’s ruling was stayed while an appeal by the government is considered.
The NSLs give the FBI the authority to ask companies that are on the Internet and other providers of electronic communications to provide subscriber information on customers in the U.S. The letters also give the government the authority to demand that the different providers of the information keep the letter secret, including from the person or persons targeted by the letter.
To have an NSL issued, a supervisor only needs to certify that the information sought is relevant to an ongoing national security investigation. A warrant is not required. Officials from the FBI said that this type of flexibility, which was granted following the terrorist attacks of 2001, is crucial for preventing any future terrorist attacks.
Nevertheless, there has been much controversy attached to the letters. The inspector general of the Justice Department found a number of years ago that the authority to have the NSLs issued was abused by the FBI, often not justifying the need to make the surveillance.
The FBI said those problems were fixed, but questions still remain about the use of a gag order and the lack of clarity in the law about the type of data that can be obtained.