In early 2011, the US Federal Bureau of Investigation did something it had done hundreds of thousands of times before: It sent a national security letter (NSL) to an unnamed telephone company, demanding the company provide customer records for an investigation. For the first time, the telephone company didn’t just blithely comply.
Instead, it resisted by petitioning the US District Court for the Northern District of California to throw out the national security letter. The telephone company is most likely Working Assets Inc.’s subsidiary Credo according to Jennifer Valentino-Devries, writing for the Wall Street Journal. Credo is perhaps more broadly known for its left-leaning political initiatives rather than its telecommunications services.
The US Department of Justice — of which the FBI is a part — responded by filing a civil complaint in the same US District Court for the Northern District of California alleging the telephone company was interfering “with the United States’ sovereign interests” and national security. It also argues that the court doesn’t have the right to determine the constitutionality of national security letters because of sovereign immunity. This is “the government’s ‘Jabberwocky’ argument — accusing the company of violating the law when it was actually complying with the law,” according to Kim Zetter, writing for Wired.
Because issues surrounding national security letters are secret — including even recipient acknowledgement of the existence of the national security letter itself — very little is known about the case aside from the court filings which are public information. Worst of all, national security letters are so widely used by the US government because they don’t require prior court approval. All that’s needed is a certification by an FBI field office that the information sought is relevant to a counterterrorism investigation.
It’s extremely rare for national security letters to be challenged. It’s hard to say how many challenges have occurred because such statistics are — wait for it — secret. Zetter reports that “in a 2010 letter (.pdf; 389KB) from Attorney General Eric Holder to Senator Patrick Leahy (D-Vermont), Holder said that there had ‘been only four challenges,’ and those involved challenges to the gag order, not to the fundamental legality of NSLs.” The grounds for the challenge in this case is an assertion that the secrecy gag order without a court order are a violation of free speech and unconstitutional under the First Amendment.
In previous testimony the US Department of Justice has disclosed that of the hundreds of thousands of national security letters it has sent, exactly two terrorist cells — one in Lackawanna, NY and one in northern Virgina — have been disrupted. And, as Valentino-Devries reports, the US Department of Justice’s “… inspector general also reported in 2007 that the FBI sometimes used the letters improperly, and in more than 700 cases circumvented the law altogether.”