Looks like it has been challenged in court on constitutionality a few times. A case was filed in the Northern District of California and was decided on March 14, 2013. Judge Illston's opinion held that the nondisclosure provisions burdened speech beyond that allowable in the Constitutionbecause the government could not show that a blanket prohibition on disclosure of receipt of a National Security Letter furthered the government's interest in national security, the provisions were not sufficiently narrowly tailored. Judge Illston additionally held that the standards of review in the National Security statute impermissibly limited a court's ability to review nondisclosure orders. On May 6, 2013, attorneys for the Department of Justice, Attorney General, and FBI appealed the court's order. The case is
In re Nat'l Sec. Letter, 930 F. Supp. 2d 1064.
The ACLU has challenged the gag order part of it in two cases, Doe v. Ashcroft and Doe v. Gonzales. In both cases, the judges ruled that the gag orders were unconstitutional on both 4th and 1st Amendment grounds. The Patriot Reauthorization Act of 2005 modified some of the gag order provisions. An NSL recipient may now disclose the fact that they received an NSL in connection with seeking legal advice or complying with the NSL. NSL recipients were also given the ability to challenge, in federal court, compliance with the NSL and the gag order provisions. Additionally, the government was given the ability to seek judicial enforcement of NSLs in non-compliance situations. Also, under the Patriot Reauthorization Act of 2005, the Department of Justice OIG is required to review "the effectiveness and use, including any improper or illegal use, of national security letters issued by the Department of Justice." The FBI is required to report to Congress on the number of NSLs issued. It's the OIG's job to assure they remain in compliance.
http://www.abajournal.com/magazine/article/national_security_letters_building_blocks_for_investigations_or_intrusive_t/In 2014 the OIG found that the FBI database significantly understates the number of NSL requests issued, and that Congress has been misinformed about the scale of the usage of the NSL authority. The report further stated that violations are supposed to be self-reported by the FBI to the Intelligence Oversight Board. During the 3-year period in question, the FBI self-reported 26 violations out of the 140,000 NSLs issued. The OIG, however, found 22 potential violations out of the sample of 293 NSLs it reviewed. The OIG has stated that there is no indication that the 293 NSLs it reviewed are not representative of all of the NSLs issued, thus indicating that the FBI is failing to self-report a very significant number of violations.
https://fas.org/irp/congress/2010_hr/exigent.pdfThe OIG also found over 700 "exigent letters," which are not authorized by statute and some of which appear to have been issued when no exigency or emergency existed. These letters requested records from telephone companies and promised that proper subpoenas had been submitted or would follow. However the OIG found no confirmation that subpoenas, NSLs, or other proper process did follow or had in fact been submitted.
https://oig.justice.gov/reports/2014/s1408.pdfIn response to the OIG report, FBI Director
Robert Mueller testified before the Senate Judiciary Committee on March 27, 2007. In his opening statement, Committee Chairman Patrick Leahy stated that the FBI's "pattern of abuse of authority and mismanagement causes me and many others on both sides of the aisle to wonder whether the FBI and Department of Justice have been faithful trustees of the great trust that the Congress and American people have placed in them to keep our nation safe while respecting the privacy rights and civil liberties of all Americans." Senator Arlen Specter, the ranking Republican member on the committee, stated that
"the question is emerging as to whether the FBI is up to the enormous task that we have asked it to perform," pointing out that "every time we turn around, there is another, very serious, failure on the part of the bureau."https://oig.justice.gov/special/s0703b/final.pdfThe FBI's authority to issue NSLs dates back to 1986, when an amendment to the Right to Financial Privacy Act was passed permitting the FBI to obtain financial records in foreign counterintelligence cases. Since then, Congress has enacted a number of laws authorizing the FBI to obtain, without judicial oversight, certain types of information in terrorism, espionage, and classified information leak investigations. Among these laws are four statutory provisions that authorize the FBI to use NSLs to obtain customer transactional information from communications companies, financial institutions, and consumer credit agencies.
https://www.justice.gov/archive/ll/highlights.htmQuote:
The Patriot Act expanded these four existing statutes, and added a fifth NSL authority. The five sources of the FBI's NSL power are:
- The Right to Financial Privacy Act (RFPA), 12 U.S.C. 3414. As originally enacted in 1978, the RFPA required that before a disclosure of personal financial information was made to law enforcement, government agencies must have provided individuals with advance notice and have given the individual an opportunity to challenge the request. A 1986 amendment to the RFPA created an exception to this advance notice requirement by authorizing the FBI to obtain financial records in foreign counterintelligence cases in cases where the agency had "specific and articulable facts giving reason to believe that the customer or entity whose records are sought is a foreign power or an agent of a foreign power." These requirements were changed upon enactment of the Patriot Act; the FBI may now obtain financial records if the information is sought for foreign counterintelligence purposes, as long as the investigation is not based on conduct protected by the First Amendment. Congress again amended the RFPA in 2003 to expand the definition of "financial institutions" to which NSLs could be issued. The statute now covers large casinos, insurance companies, automobile dealerships, credit unions, real estate companies, and travel agencies.
- The Electronic Communications Privacy Act (ECPA), 18 U.S.C. 2709. The ECPA allows the FBI to obtain telephone and e-mail information by issuing a NSL. This includes historical information on telephone calls made and received from a specified number, and billing records associated with a number. It also includes e-mails, screen names, and billing records for electronic communication services. Lastly, it includes subscriber information associated with an individual's phone or e-mail account.
- The Fair Credit Reporting Act (FCRA), 15 U.S.C. 1681u. The FCRA, as amended in 1996, authorizes the FBI to issue NSLs to obtain a consumer's credit history information, including the names and addresses of all financial institutions at which the consumer maintains or has maintained an account. The FBI may also request a consumer's identifying information, limited to name, address, former addresses, and both current and past employers.
- Patriot Act amendment to the Fair Credit Reporting Act, 15 U.S.C. 1681v. This new national security letter authority authorizes the FBI (and any government agency authorized to conduct international terrorism investigations) to obtain a consumer's full credit report and "all other" information in a consumer's file for international terrorism investigations.
- The National Security Act, 50 U.S.C. 436. The National Security Act, amended to include NSL authority after the 1994 espionage investigation of former CIA employee Aldrich Ames, authorizes NSLs to be issued in association with investigations of improper disclosure of classified information by government employees. This authority is rarely used by the FBI. The NSLs can cover financial records and information, including consumer reports.
https://epic.org/privacy/ecpa/EPIC-16-04-14-DOJ-FOIA-20170905-Production.pdfhttps://fas.org/sgp/crs/intel/RS22406.pdfhttp://www.lawschool.cornell.edu/research/cornell-law-review/upload/Nieland.pdfhttps://fas.org/sgp/crs/natsec/RL32880.pdfhttps://epic.org/privacy/terrorism/usapatriot/foia/iob.pdf Never take a hostage you aren't willing to shoot,
Remember, America doesn’t negotiate with terrorists.
Code 7 10-42
) And perhaps the one leading effort over the Mueller thread is that more degrees of separation are thrashed about in this thread
