Current Issue
This Month's Print Issue

Follow Fast Company

We’ll come to you.

3 minute read

The Code War

"1984"-Style National Security Letters Ruled Unconstitutional

The secretive, gag order-attached National Security Letters routinely sent by the FBI to tech firms and telecom providers have been ruled unconstitutional.

"1984"-Style National Security Letters Ruled Unconstitutional

The mysterious National Security Letters sent by the Federal Bureau of Investigation (FBI) to Internet hosting companies, telecommunications providers, and data firms are one of the tech scene's worst kept secrets. Once a tech company receives a National Security Letter (NSL), they must give customer information to the government—and are barred from discussing the letter with anyone except corporate lawyers, or even saying that they received the letter. The FBI does not require warrants to send out NSLs either, making them a secretive, worrying, but easy-to-use law enforcement toll. But, at least for now, the age of NSLs is over.

On Friday, March 15 San Francisco Federal District Court Judge Susan Illston ruled that the use of NSLs is unconstitutional. In her ruling, Illston ordered the FBI to immediately cease use of gag order-attached NSLs; the ruling is stayed for 90 days to give the government time to appeal. The Judge specifically criticized the FBI for using NSLs indiscriminately, and for using a secretive tool originally designed to stop espionage as a routine part of everyday law enforcement.

The NSL ban follows a lawsuit filed by the Electronic Frontier Foundation (EFF), a well-known Internet rights advocacy group, on behalf of an anonymous Internet firm which received an NSL. Part of the rules of receiving NSLs is that the company on the receiving end cannot say that they have received the NSL, and that recipients are legally forbidden from even mentioning the letter's contents to loved ones. Basically, the super-secretive NSLs read like something out of George Orwell's 1984.

Nonetheless, traces exist of the company which received the NSL, took the FBI to court, and won. Credo, a small mobile service provider with over 100,000 customers with a long history of social advocacy, refused to confirm or deny to the Wall Street Journal that they received an NSL following an investigation.

The Journal followed the NSL back to Credo based on breadcrumbs inside the EFF's original court filing; after the newspaper article was published, Credo began a public campaign against NSLs—all without admitting that they ever received one. While the company is required by federal law to remain mum on the subject, a petition filed on their website asks customers to protest against NSLs. Credo reportedly joined Nicholas Merrill of ISP Calyx in protesting the use of NSLs.

"We are very pleased that the court recognized the fatal constitutional shortcomings of the NSL statute," EFF attorney Matt Zimmerman said in a prepared statement. "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."

NSLs were first approved by Congress in the 1980s as a way for FBI and NSA agents to monitor foreign agents without court oversight. However, their usage ballooned thanks to PATRIOT Act-inspired law enforcement shifts and anti-terrorism hysteria in post-9/11 America. According to Justice Department reports gathered by Wired's Kim Zetter, NSL usage is commonplace. 8,500 NSLs were sent out in 2000, 39,346 NSLs were sent out in 2003, and 24,287 were sent out in 2010. Most of these, anecdotal evidence suggests, are sent to large corporations such as AT&T, Google, and Verizon. Google has been the only company out of these which (in as much a way as they legally can) protested this—the company's latest transparency report lays out in extremely opaque terms that they receive NSLs from the federal government which they're required to comply with.

Credo CEO Michael Kieschnick emailed Fast Company shortly after this article was published. "This ruling is the most significant court victory for our constitutional rights since the dark day when George W. Bush signed the PATRIOT Act [...] This decision is notable for its clarity and depth. From this day forward, the U.S. government’s unconstitutional practice of using National Security Letters to obtain private information without court oversight and its denial of the First Amendment rights of National Security Letter recipients have finally been stopped by our courts."

"Credo applauds the work of EFF, a longtime champion in the fight to protect civil liberties, and the work of U.S. District Court Judge Susan Illston. Credo will continue our fight to protect civil liberties, including opposing the warrantless wiretapping of Americans. However, our longstanding defense of civil liberties should not be taken as an indication of any kind as to whether we have received a National Security Letter," said Kieschnick.

[Image: Flickr user Cliff1066]

Update: A statement from Credo has been appended to the original article.