Surveillance request ruled unconstitutional? Just issue a National Security Letter instead! -

Surveillance request ruled unconstitutional? Just issue a National Security Letter instead!

Douglas Crawford

Douglas Crawford

January 9, 2015

According to Section 215 of the USA PATRIOT Act, if government agencies such as the FBI and Department of Justice (often working on behalf of the NSA) want to demand that a company hand over all ‘business records’ (a term so broad that it usually means ‘all details on all calls’), it can apply to the FISA Court for a warrant.

This route has the advantage over government agencies’ other option of issuing a National Security Letter (NSL), because the fact that that the warrant has received oversight by a court gives it a legitimacy than an NSL lacks, despite the fact that FISA Court approval of such requests widely understood to be a mere formality (i.e. a rubber stamp).

A newly declassified Inspector General’s report from 2008, however, throws up and interesting (and scandalous) kink in the process:


For clarity, this says,

We considered the Section 215 request for [REDACTED] discussed earlier in this report at pages 33 to 34 to be a noteworthy item. In this case, the FISA Court had twice declined to approve a Section 215 application based on First Amendment Concerns. However, the FBI subsequently issued NSLs for information [REDACTED] even though the statute authorizing the NSLs contained the same First Amendment restriction as Section 215 and the ECs authorizing the NSLs relied on the same facts contained in the Section 215 applicants. We there therefore describe this case in more detail in this section.’

So the when the FISA Court took the unusual step of declining a surveillance application on constitutional (First Amendment) grounds, the FBI simply issued an NSL instead, and carried on spying!

It should be noted that NSLs themselves (which come with a handy gag order preventing anyone from disclosing their use) have been found unconstitutional by a Federal Judge on grounds that they impinge on free speech. This ruling, however, has so done nothing to prevent their further use.