Federal court rules “national security letters” unconstitutional

Reporters Without Borders hails a March 14 ruling by a federal district court judge in San Francisco that it is unconstitutional for the FBI to use national security grounds to request information about subscribers from phone companies and Internet Service Providers in a completely secret manner and without a court warrant. Sent in the form of so-called “national security letters” under the Patriot Act, these requests have prohibited the companies that receive them from revealing their existence without permission. This important ruling was issued in response to a case brought on behalf of an unnamed telecommunications company by the Electronic Frontier Foundation, which defends online freedoms. Citing the importance of the constitutional and security issues at stake, Judge Susan Illston ruled that her decision would not take effect for 90 days in order to give the government the opportunity to appeal. Judge Illston ruled that use of the national security letters and their gag rule violated the First Amendment’s protection of freedom of expression. The fact that 97 per cent of the letters imposed non-disclosure requirements showed that they were being abused, she said. Other existing and proposed US laws also use national security grounds to threaten civil liberties and freedom of information. They include a new version of the proposed Cyber Intelligence Sharing and Protection Act (CISPA), which was unveiled in January and could come before Congress next month. The 2008 Foreign Intelligence Surveillance Amendments Act (FISAA), which was extended last December until 2017, gives the US government extraordinary surveillance powers that include accessing the data of non-US citizens who use cloud computing services offered by US companies. The US authorities can, for example, use the law to obtain a secret warrant from a special court to force Google to provide access to all the data – emails, files, contacts and calendar – of any client who is not a US citizen. Deep concern about the extent of these new surveillance powers has been voiced in a report entitled Fighting Cyber Crime and Protecting Privacy in the Cloud that was produced for the European Parliament and released at the end of 2012. Reporters Without Borders hopes that last week’s court ruling will encourage more challenges to laws that restrict online freedom of information and expression on the spurious grounds of defending national security and combatting terrorism.