March 29, 2013

Remember the USA PATRIOT Act? Passed hastily in the aftermath of the 9/11 attacks, the Act is meant to deter and punish terrorist acts in the U.S. and around the world by enhancing law enforcement investigatory tools. One of the key provisions of the Act allowed any government agency to issue what they called a National Security Letter (NSL).

While it may sound like a harmless, every day investigative tool, NSLs are actually one of the most detrimental infringements on our security and privacy. Essentially, an NSL is a demand by the federal government to an entity or organization to provide records and data on individuals. Every NSL comes with a gag order preventing the recipient of the letter from disclosing that they were ever issued an NSL, let alone what information was requested.

Last week, a federal judge in San Francisco ruled NSLs unconstitutional because they violate the First Amendment. While NSLs are reportedly used to uphold national security, U.S. District Judge Susan Ilston wrote in her decision that the government has failed to show that the letters and accompanying gag orders “serve the compelling need of national security.” Furthermore, the gag orders create “too large a danger that speech is being unnecessarily restricted.”

Although Ilston struck down the letters as unconstitutional and ordered the FBI to stop issuing them, she put the order on hold for 90 days to allow the Department of Justice (DOJ) to appeal her decision.

Ilston is not alone in her opinion about the troubling provisions of NSLs. A federal judge in New York found NSLs to be permissible so long as the FBI does not continue to issue them with the gag order, and it informs the recipient of the letter that they can ask judges to review the letter on their behalf.

According to the latest numbers available from 2011, the FBI has issued more than 16,500 letters for about 7,200 individuals since 2001. In 2007, however, the DOJ’s Inspector General found widespread abuse with the issuance of NSLs. The report found that the FBI had issued upwards of 3,000 letters without proper authorization and information was obtained in non-emergency situations.

While judicial review is a positive step in confronting such a violation of our civil rights and civil liberties, Congress should also step up to their role of checking federal agencies’ use of NSLs. How did this program skip past our system of checks and balances?

As we remember the 10th anniversary of the Iraq war, there is a key lesson we should take away: No matter how dire our national security situation may be, our Founding Fathers intended for us to remain a transparent society with checks and balances. We must hold our policy-makers accountable and ensure that our national values are not compromised in the name of national security.