Long before Edward Snowden exposed the NSA's snooping, the FBI was already sending widespread "national security letters." These letters demand that companies hand over their customers' private information. The letters explain that the information is necessary to fight terrorism and foreign spies on U.S. turf.
And while that may ultimately be true, these thousands of letters side step the courts and the traditional process of securing legal search warrants.
This Wednesday, the 9th U.S. Circuit Court of Appeals in San Francisco is reviewing this issue. Huge tech companies like Google, Yahoo, Microsoft, and Facebook are weighing in - along with the anonymous company that first began this fight against the FBI. All of the tech giants involved agree that the letters infringe upon our right to free speech. In other words, this is just as much about our right to complain or speak out about these government requests as it is about the worry that the FBI is illegally collecting Internet data.
Last year, U.S. District Judge Susan Illston already found that the letters (known as NSLs) violate the First Amendment because they forbid those who receive them from talking about them. In fact, the people or companies that receive them cannot even say if they received one or not. For example, the telecom company who originally brought this suit still cannot even announce themselves by name in this case. Even their lawyers from the civil liberties group the Electronic Frontier Foundation can't mention the name of their client.
Will the Courts uphold that NSL letters are unconstitutional?
I think it's common knowledge that some Americans believe that the government has been going too far with surveillance tools. The recent outpouring of rage on social media, with respect to Edward Snowden's claims about the NSA should be enough to make us realize that much. Restricting citizens' ability to speak out is very concerning. UCLA Law professor Eugene Volokh, who filed a friend-of-the-court brief on the case, said, "The gag order says you not only have to turn over the information, but you can't complain about it."
The government has asked the appeals court to overturn her ruling as the U.S. Justice Department considers the letters and their demand for secrecy, vital to investigations. If the court upholds its decision, the FBI will be barred from using NSL letters completely - unless the Executive Branch then persuades Congress to modify the Patriot Act to address the free-speech concerns.
The Justice Departments says the letters are of critical importance to the federal domestic surveillance program - even more than the data collected by the NSA, which is more global in nature. The numbers of letters issued by the FBI has ranged between 16,5000 and 56,5000 annually between 2003 and 2011.
So, while it may seem like just another Wednesday, the decision being made by the 9th U.S. Circuit Court of Appeals is one that will have long term affects on our free speech and perhaps even national security. Of course, I will let you know when a decision has been reached.
Until then, let me know how you feel. Do you think demanding private customer information and then insisting that corporations cannot speak about these requests, violates our right to free speech. Or, do you think our security is far too important to risk?