FBI surveillance tool is ruled unconstitutional

by
March 16, 2013

A federal court in California has ruled that a surveillance tool widely used by the FBI to obtain information on Americans without court oversight is unconstitutional because the gag order that accompanies it violates the First Amendment.

The ruling by Judge Susan Illston of the Northern District of California would bar the issuance of national security letters — a form of administrative subpoena — on constitutional grounds.

The ruling on the 1986 statute has been stayed while the government weighs an appeal.

NSLs allow the FBI to ask Internet companies and other electronic communication service providers to turn over subscriber information on American customers and to demand that the providers keep the fact of the letter secret — including from the target.

To issue an NSL, a supervisor need only certify that the records sought are relevant to an authorized national security investigation. No warrant is required. FBI officials have said that such flexibility, granted in the aftermath of the 2001 terrorist attacks, is crucial to preventing future attacks.

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