FBI Can’t Demand Customer Records From Telcos, Judge Says

FBI demands on phone companies for confidential customer records in terrorism investigations were ruled unconstitutional by a federal judge.

U.S. District Judge Susan Illston in San Francisco said the Federal Bureau of Investigation must cease issuing so-called national security letters to phone companies and stop barring the letters’ recipients from talking about them, according to an order provided by the Electronic Frontier Foundation. The group is a cyber-rights advocate representing an unidentified phone-service provider that received one of the letters.

The ruling yesterday throws out one of several federal laws that authorize the FBI to issue such letters, known as NSLs.

The statute contains “multiple constitutional problems” and “there is no ‘reasonable construction’ that can avoid the constitutional infirmities that have been identified,” Illston said in her decision.

She put her order on hold for 90 days to allow the government to appeal.

“We are very pleased that the court recognized the fatal constitutional shortcomings of the NSL statute,” Matt Zimmerman, an attorney with the Electronic Frontier Foundation said in an e-mail. “The government’s gags have truncated the public debate on these controversial surveillance tools. Our client looks forward to the day when it can publicly discuss its experience.”

Dean Boyd, a spokesman for the Justice Department, said by e-mail that Illston’s order is under review.

Previous Ruling

The ruling is at least the second by a federal judge on the legality of the letters. In 2007, a judge in Manhattan struck down aspects of the letters as amended by the U.S. Patriot Act.

Civil-rights groups say NSLs give federal agents unchecked powers to spy on people while the government says they’re a crucial tool in the fight against terrorism and threats to national security.

The requests can be issued without any outside review and present a “serious risk of unfettered abuse by the government,” lawyers for the foundation said in court filings. They claimed the letters violate the U.S. Constitution’s right to free speech rights and prohibitions against prior restraint of speech, according to partially redacted documents unsealed in the case.

Customer’s Name

The FBI issued an NSL to the phone service provider in the lawsuit in 2011, directing it to provide the name, address and length of service for accounts held by one of its customers. The customer’s name and other details were withheld in court papers.

The provider sued the government, saying NSL recipients can challenge the letters in court if they are “unreasonable, oppressive or otherwise unlawful,” according to court documents.

Justice Department lawyers claimed NSL recipients can ask courts to modify or invalidate the letters, not void NSL laws.

The nondisclosure requirement doesn’t constitute prior restraint of speech because recipients can be punished only after they make a prohibited disclosure, lawyers for the U.S. argued in court filings.

The case is In Re National Security Letter, 11-2173, U.S. District Court, Northern District of California (San Francisco).

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