Prior Restraint

National security letters strike me as one of the worst Constitutional abuses to come out of the last 10 years, which is saying a lot given the post-9/11 theories of executive authority from torture to indefinite detention to even ordering people killed.

The national security letters deserve particular scrutiny because they evade the Fourth Amendment while building in a prior restraint on speech that prevents recipients from challenging the letters or even complaining about them.  This is self-sustaining policy -- ie policy that prevents the dissemination of information that might prove it is a threat or a failure -- at its worst.

The Justice Department's inspector general revealed on March 9 that the FBI has been systematically abusing one of the most controversial provisions of the USA Patriot Act: the expanded power to issue "national security letters." It no doubt surprised most Americans to learn that between 2003 and 2005 the FBI issued more than 140,000 specific demands under this provision -- demands issued without a showing of probable cause or prior judicial approval -- to obtain potentially sensitive information about U.S. citizens and residents. It did not, however, come as any surprise to me.

Three years ago, I received a national security letter (NSL) in my capacity as the president of a small Internet access and consulting business. The letter ordered me to provide sensitive information about one of my clients. There was no indication that a judge had reviewed or approved the letter, and it turned out that none had. The letter came with a gag provision that prohibited me from telling anyone, including my client, that the FBI was seeking this information. Based on the context of the demand -- a context that the FBI still won't let me discuss publicly -- I suspected that the FBI was abusing its power and that the letter sought information to which the FBI was not entitled.

Anyone want to bet how many of these things really are national security related, and how many are related to other investigations (particularly drugs)?

There are zillions of people involved in these major investigations.  There is no good argument against adding one more who is in on the secret - ie a judge - and a lot of reasons to do so.


  1. Don:

    Used to get "administrative warrants" periodically when I ran my ISP. They always came from the same office (in AZ, as it would happen), and when I asked the agent when I called to confirm the self-written administrative warrant, she said, "we deal mainly with crimes against children here."

    My assumption was they were working through IP addresses in the logs of some kiddy-porn server somewhere, but I could never confirm that.

  2. dearieme:

    Slightly reminiscent of Lettres de Cachet, eh?

  3. ErisGuy:

    "how many are related to other investigations (particularly drugs)"

    Complaining the FBI might be overstepping its authority in attempting to enforce drug laws is a losing argument as long Mexico continues to descend into hell.

  4. LJB:

    Shades of the old "John Doe"warrants from long ago.

  5. EscapedWestOfTheBigMuddy:

    Yeah, but this is different from the last three times we've learn that the feebs were abusing National Security Letters. This time they really will clean up their act.



  6. dave smith:

    ErisGuy, are you being sarcastic? If you are not, you need to go read Radley Balko.