An Internet Service Provider (“ISP”) received a national security letter (“NSL”) from the FBI pursuant to 18 U.S.C. §2709. This statute was originally enacted as part of Title II of the Electronic Communications Privacy Act of 1986 (“ECPA”) and was most recently by the USA Patriot Act of 2001. Section §2709 allows the FBI to issue a NSL that requires communications firms to produce subscriber information to an associate director of the FBI. The firm that receives the NSL is not allowed to disclose the receipt of the NSL to any other person. The ISP that received this NSL, with the ACLU, filed a complaint alleging that section 2709 is unconstitutional under the First, Fourth, and Fifth Amendments to the U.S. Constitution. The Plaintiffs argued that the statuteviolated the Fourth Amendment because it allowed the FBI access to private information of subscriber records without any judicial checks or balances and the non-disclosure section in the statute violated the First Amendment. The District Court granted summary judgment in favor of the plaintiffs agreeing the Fourth Amendment was violated because the statute “bars or substantially deters any judicial challenge” (2004 WL 2185571, 1 (S.D.N.Y.)) and the First Amendment was violated because the non-disclosure clause is an indefinite restriction of speech.
On the Fourth Amendment issue, the plaintiffs argued that the NSLs illegally skirt judicial review of the searches, give the FBI the sole power to issue and and enforce the requests. The Court held that NSLs are administrative subpoenas which do not need to meet strict Fourth Amendment standards, but need only be “reasonable”. Despite this permissive standard, the Fourth Amendment requires that an administrative subpoena must be subject to judicial supervision. Since, the actual text of section 2709 does not allow the recipient to judicially contest the NSL and the FBI implementation of the NSL leads the recipient to the conclusion that they have no choice “but to immediately obey and stay quiet,” Id., 22. the court found that this request process violates the Fourth Amendment protections against unreasonable search and seizure.
The court also adopted the plaintiffs’ argument that the statute is an illegal restraint on speech. Section 2709 indefinitely bars served from reporting they have received a letter, and “thus closes off that 'entire topic' from public discourse.” Id., 31. The court found that form of restraint on speech unacceptable, despite the interests of the government in protecting national security.
