Between 2003 and 2006, the FBI issued 192,499 national security letters (NSLs) demanding information such as financial, phone, and Internet records. Recently, as suggested by the Supreme Court as a way to address constitutional concerns, the feds started telling NSL recipients they have a right to challenge the letters and their secrecy requirements. But after a telephone company took advantage of that opportunity, the federal government sued it for delays caused by the appeal.
Although a gag order prevents the besieged phone company from identifying itself, The Wall Street Journal determined it is probably Credo, a mobile and long distance provider formerly known as Working Assets that channels some of its profits to progressive causes. In fighting the letter, the company argued that the forced secrecy “turns the First Amendment’s procedural prior restraint doctrine on its head by allowing the FBI to issue a never-ending prior restraint on its own, then requiring the recipient service provider to undertake a legal challenge.”
The Justice Department sued in response, arguing that delaying compliance while challenging an NSL “interferes with the United States’ vindication of its sovereign interests in law enforcement, counterintelligence, and protecting national security.” Rep. Jeff Flake (R-Ariz.), who wrote the legislation that created the NSL appeal process, says he disagrees with that interpretation.
The Justice Department also claims the appeal process “is a limited waiver of sovereign immunity,” so “there is no warrant or jurisdiction for broader relief” beyond a challenge to a specific letter. “I would say this is a puzzling argument,” George Washington University law professor Orin Kerr told the Journal. “There has to be a way to challenge the constitutionality of the law.”