The Electronic Frontier Foundation has released redacted copies of key documents in a constitutional challenge to national security letters (NSLs). These controversial legal tools give the FBI warrantless access to private customer information held by businesses. The law gives the FBI the power to ban a business receiving an NSL from disclosing its existence, but EFF contends that this runs afoul of the First Amendment.

The challenge is being brought by a telephone company that does business in California. Not much else is known about it. The Wall Street Journal speculates that the company may be Credo, a wireless reseller. Its parent company is Working Assets, known for giving millions of dollars to liberal groups, including the Electronic Frontier Foundation.

News of the case surfaced only this week, but the NSL at the heart of the dispute was sent to the company early last year. When the firm objected, the government filed a complaint seeking to compel the firm to comply. With support from EFF, the company responded by challenging the constitutionality not only of the specific letter but of the entire NSL statute.

A history of abuses

NSLs have proven ripe for abuse by the government. A 2007 audit by the Office of Inspector General found (as we put it at the time) "an agency with poor record-keeping, inadequate safeguards, and a cavalier attitude toward the rights of ordinary Americans." Subsequent reports in 2008, 2009, and 2010 found continued problems.

Hundreds of thousands of NSLs have been issued over the last decade, but only a handful of challenges have been reported. The first challenge, eventually revealed to involve Nicholas Merrill of Calyx Internet Access, resulted in an appeals court ruling that the NSL procedure Congress had authorized violated the First Amendment. But rather than strike down the entire law, the court allowed the FBI to modify its procedures in order to give letter recipients more opportunity to challenge the letters.

But EFF argues that these changes don't go far enough in protecting free speech rights. The organization notes that the courts have only allowed prior restraint—government regulation of speech prior to publication—when the speech poses a "specific, articulable risk of direct, immediate, and irreparable harm." EFF contends that NSL gag orders don't come close to meeting this standard, since they only require the FBI to certify that disclosure "may result" in harm to national security.

"A puzzling argument"

Incredibly, the FBI claims that a gag order isn't prior restraint at all. According to the feds, an NSL gag order "applies subsequent punishment to, not prior review and censorship of, a prohibited disclosure." Of course, the same could be said of almost any prior restraint, which typically involves threats of fines or jail time if information is published without government approval.

The government also compares the gag order to confidentiality requirements imposed on members of a grand jury. In those cases, the government says, it can prohibit disclosure of information obtained as part of the judicial process. It argues that NSLs are no different.

But this argument, too, seems weak. The fact that the government sent the NSL isn't information disclosed by the government, it's information about the government's own actions. Obviously, there are good reasons to ban the recipient of an NSL from disclosing details such as the name of the customer targeted. But it's hard to see how national security would be compromised by a service provider merely disclosing the fact that it has received an NSL. But such censorship does deprive the public of information about how national security letters are being used.

Finally, the government argues that EFF's challenge runs afoul of sovereign immunity, the doctrine that the government cannot be sued without its consent. But constitutional lawyer Orrin Kerr questions that argument, telling the Wall Street Journal that sovereign immunity applies to cases seeking monetary damages, not constitutional cases.

"I would say this is a puzzling argument," Kerr said. "There has to be a way to challenge the constitutionality of the law."