The Electronic Frontier Foundation, joined by several civil liberties organizations
and online service providers, filed a friend-of-the-court brief yesterday in the
case of Doe v. Gonzales arguing that National Security Letters (NSLs) are unconstitutional.
NSLs are secret subpoenas for communications logs, issued directly by the FBI
without any judicial oversight. These secret subpoenas allow the FBI to demand
that online service providers produce records of where their customers go on the
Web, as well as what they read and with whom they exchange email. The FBI can
even issue NSLs for information about people who haven't committed any crimes.
A federal district court has already found NSLs unconstitutional, and the government
is now appealing the case. In its brief to the Second Circuit Court of Appeals,
EFF argues that these secret subpoenas imperil free speech by allowing the FBI
to track people's online activities. In addition, NSLs violate the First and
Fourth Amendment rights of the service providers who receive the secret government
demands. EFF and its cosigners argue that NSLs for Internet logs should be subject
to the same strict judicial scrutiny applied to other subpoenas that may reveal
information about the identities of anonymous speakers - or their private reading
habits and personal associations.
Yet NSLs are practically immune to judicial review. They are accompanied by gag
orders that allow no exception for talking to lawyers and provide no effective
opportunity for the recipients to challenge them in court. This secret subpoena
authority, which was expanded by the USA PATRIOT Act, could be applied to nearly
any online service provider for practically any type of record, without a court
"The Constitution does not allow the FBI to secretly demand logs about
Internet users' Web browsing and email history based on vague claims of national
security," said EFF attorney and Equal Justice Works/Bruce J. Ennis Fellow
Kevin Bankston. "The district court's decision that National Security Letters
are unconstitutional should have been a wake-up call to the House of Representatives,
which just voted to renew the PATRIOT Act without adding new checks against
Although such protections are lacking in the PATRIOT renewal bill that the
House of Representatives recently passed, they are included in the Senate bill.
It is not yet clear whether those protections will be included in the final
bill when it reaches the President's desk.
EFF was joined on the brief by the Center for Constitutional Rights, the Center
for Democracy and Technology, the Online Policy Group, Salon Media Group, Inc.,
Six Apart, Ltd., the US Internet Industry Association, and ZipLip, Inc.
EFF Friend of the Court Brief: ( PDF