The Justice Department is suing a telecommunications company for challenging a request from the Federal Bureau of Investigation for customer information — despite the fact that the law authorizing the request explicitly permits such challenges.
According to documents provided by the Electronic Frontier Foundation (EFF), which is representing the telecom, the company (whose name is one of the many redacted details in the documents) received a national security letter (NSL) in 2011. An NSL is essentially a self-issued search warrant whereby the FBI bypasses the Fourth Amendment and demands information about an individual without bothering to obtain a judge’s consent — and forces the recipient of the letter to keep mum about it because disclosure would allegedly harm national security. NSLs were employed somewhat sparingly prior to 2001 but became widely used — and abused, as the Justice Department’s inspector general reported in 2007 — after the misnamed Patriot Act loosened the requirements for issuing them.
The telecom chose to fight not just the gag order, as a handful of other companies have done, but also the NSL and the law authorizing it. This, EFF says, is allowed under a 2006 amendment to the law, which gives a company receiving an NSL the right to oppose the gag order and force the FBI to prove in court that disclosure of the NSL would harm national security. “Since Feb. 2009,” writes Wired, “NSLs must include express notification to recipients that they have a right to challenge the built-in gag order that prevents them from disclosing to anyone that the government is seeking customer records.”
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