Gags as Guidance: Expanding Notice of National Security Letter Investigations to Targets and the Public

38 Pages Posted: 21 Apr 2016 Last revised: 5 Jul 2016

See all articles by Rebecca Wexler

Rebecca Wexler

University of California, Berkeley, School of Law

Date Written: January 16, 2016

Abstract

National Security Letters (NSLs) are administrative subpoenas that the FBI uses to demand information from Internet service providers without prior judicial approval. They almost always include nondisclosure orders, commonly called “gags,” which prohibit the recipient from discussing the letter’s contents or even its mere existence. Courts and commentators have expressed concern that these gags may be overbroad prior restraints that violate the First Amendment and shroud government surveillance in undue secrecy. On November 30, 2015, an NSL gag order was lifted in full for the first time after a federal district judge found no “good reason” to retain it.

This Note considers the related rights of NSL targets. It argues that the FBI should provide notice of NSL investigations to targets and the public once government interests in secrecy abate. Specifically, once a nondisclosure order is lifted, thereby authorizing the recipient of the NSL to reveal any information about it that she desires, the government should disclose that same information. Enhancing transparency about government surveillance in this manner would not risk harm or cause undue administrative burden. It would harmonize with longstanding, closely related domestic criminal statutes. And it would advance core principles that underlie the Fourth Amendment. Moreover, the First Amendment offers ready balancing tests that can easily and reasonably be applied to guide government notice practices.

Keywords: National Security Letters, gag orders, nondisclosure orders, First Amendment, Fourth Amendment

Suggested Citation

Wexler, Rebecca, Gags as Guidance: Expanding Notice of National Security Letter Investigations to Targets and the Public (January 16, 2016). 31 Berkeley Technology Law Journal 325 (2016). Available at SSRN: https://ssrn.com/abstract=2765736

Rebecca Wexler (Contact Author)

University of California, Berkeley, School of Law ( email )

691 Simon Hall
Berkeley, CA 94720
United States
510 664 5258 (Phone)

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