Process without Procedure: National Security Letters and First Amendment Rights

Abstract

Each year, the FBI uses tens of thousands of NSLs to obtain “transactional records” related to telephone calls, emails, text messages, online forums, and other communicative activity. NSLs are usually accompanied by nondisclosure orders that prevent recipients from speaking about or acknowledging the requests. Although over 100,000 NSLs have been issued since 2001, there have been fewer than 10 known judicial challenges.

I argue that the absence of procedural safeguards within the NSL authority has created a de facto regime of automatic compliance with the requests, endangering First Amendment rights in the process. NSLs are explicitly directed at uncovering the networks and associations of specific subscribers, including political groups, religious associations, and the press. Without adequate safeguards, the acquisition of communications metadata in this context has serious implications for First Amendment freedoms.

I then offer a typology of safeguards for First Amendment rights in the national security space. I differentiate between binding, “hard” safeguards, such as notice and an opportunity to be heard, and non-binding, “soft” safeguards, such as internal regulations securing protection for the news media from certain intrusive investigative tools. Because NSLs lack both “hard” and “soft” safeguards, they are a unique case study for assessing the adequacy of procedural protections for substantive First Amendment rights.

Keywords: National Security Letters, First Amendment, Procedural Safeguards, Freedom of Association, Associational Rights, Free Expression, Communications Surveillance, Electronic Surveillance