Secret FBI Surveillance Deemed Unconstitutional

(CN) - Controversial laws allowing the FBI to secretly obtain records for counterterrorism investigations without court approval violate the Constitution, a federal judge in San Francisco ruled.

Citing "significant constitutional defects," U.S. District Judge Susan Illston barred the government from issuing so-called "national security letters" and the gag orders that accompany them about 97 percent of the time.

National security letters date back to the 1980s and were reinforced by the USA Patriot Act after the Sept. 11, 2001 terrorist attacks. The FBI issued more than 140,000 national security letters from 2003 through 2005, according to the Office of the Inspector General.

The letters allow the FBI to obtain phone, financial and electronic records without the approval of a judge or grand jury, so long as the FBI director or a designee certifies that the data "are relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities."

Recipients of national security letters are frequently subject to a nondisclosure requirement barring them from talking about it. They can petition the court for an order modifying or setting aside the national security letter, but the law states that a court may do so only "if compliance would be unreasonable, oppressive, or otherwise unlawful."

A 2007 investigation and report by the OIG found "serious misuse" of national security letters by the FBI.

Illston said the nondisclosure and judicial review provisions violated the First Amendment and the separation of powers principle.

The flaws in these provisions "cannot be avoided by 'conforming' the language of the statute to satisfy the Constitution's demands, because the existing statutory language and the legislative history of the statutes block that result," Illston wrote.

Specifically, she cited a prior case in New York addressing the constitutionality of national security letters. In 2008, the 2nd Circuit ruled that the provisions required procedural safeguards -- including government-initiated judicial review - to pass constitutional muster.

Illston said there was no way of knowing if and how the government was complying with those safeguards, other than to take the government at its word.

"The government is attempting to foreclose petitioner's facial attack on the NSL provisions by arguing that this court must defer to the government's 'authoritative constructions' of the NSL statute, including its implementation in this case," Illston wrote.

However, there is no evidence that the Department of Justice or the FBI is complying with the 2nd Circuit's limitations, and even if they are, the law needs to mandate compliance, Illston explained.

She also found that the provisions were too broad, in part because they don't specify whether a letter recipient is barred from disclosing the mere receipt of a letter or its contents.

As written, the provisions "significantly infringe on speech regarding controversial government powers," Illston concluded.

She enjoined the government from issuing national security letters or from enforcing the gag orders, but stayed her ruling pending appeal.

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