A critical legal battle for one of the most controversial tools in U.S. law enforcement’s arsenal has begun.
On Wednesday, a panel of three appellate court judges heard opening arguments over a case concerning the use of national security letters (NSL), the use of which was effectively ruled unconstitutional in 2013.
Kurt Opsahl, senior staff attorney at the Electronic Frontier Foundation (EFF), argued on behalf of two clients whose identities are being kept secret by the Patriot Act provision being challenged.
National security letters, or NSLs, are served on telecommunications companies by the Federal Bureau of Investigation (FBI) to demand the private data of American citizens. Unlike search warrants, which require prior judicial review, NSLs are used to acquire sensitive records, including emails, phone records, and financial records, without a court order.
At the center of the issues discussed before the 9th Circuit U.S. Court of Appeals is the constitutionality of a non-disclosure policy that makes it illegal for companies to publicly disclose when they've been served with a NSL.
A lower court previous ruled that such gag orders violated NSL recipients’ First Amendment rights. In that decision, the court ruled that the provision of the Patriot Act authorizing the use of NSLs was unconstitutional. Due to the consequence of her decision, Judge Susan Illston placed a hold on enforcing a ban on NSLs until the case could be heard by an appeals court.