Last year, when a telecommunications company received an ultra-secret demand letter from the FBI seeking information about a customer or customers, the telecom took an extraordinary step — it challenged the underlying authority of the FBI’s National Security Letter, as well as the legitimacy of the gag order that came with it.
Both challenges are allowed under a federal law that governs NSLs, a power greatly expanded under the Patriot Act that allows the government to get detailed information on Americans’ finances and communications without oversight from a judge. The FBI has issued hundreds of thousands of NSLs and been reprimanded for abusing them — though almost none of the requests have been challenged by the recipients.
After the telecom challenged its NSL last year, the Justice Department took its own extraordinary measure: It sued the company, arguing in court documents that the company was violating the law by challenging its authority.
That’s a pretty intense charge, according to Matt Zimmerman, an attorney for the Electronic Frontier Foundation, which is representing the anonymous telecom.
“It’s a huge deal to say you are in violation of federal law having to do with a national security investigation,” says Zimmerman. “That is extraordinarily aggressive from my standpoint. They’re saying you are violating the law by challenging our authority here.”
The government’s “Jabberwocky” argument – accusing the company of violating the law when it was actually complying with the law – appears in redacted court documents that were released on Wednesday by EFF with the government’s approval. Prior to their release, the organization provided them to theWall Street Journal, which first reported on the case Tuesday night. The case is a significant challenge to the government and its efforts to obtain documents in a manner that the EFF says violates the First Amendment rights of free speech and association.
It’s only the second time that such a serious and fundamental challenge to NSLs has arisen. The first occurred in 2004 in the case of a small ISP owner named Nicholas Merrill, who challenged an NSL seeking info on an organization that was using his network. He asserted that customer records were constitutionally protected information.
But that issue never got a chance to play out in court before the government dropped its demand for documents.
With this new case, civil libertarians are getting a second opportunity to fight NSLs head-on in court. [++]