Privacy security

Twilio Demonstrates Why Courts Should Review Every National Security Letter

The list of companies who exercise their right to ask for judicial review when handed national security letter gag orders from the FBI is growing. Last week, the communications platform Twilio posted two NSLs after the FBI backed down from its gag orders. As Twilio’s accompanying blog post documents, the FBI simply couldn’t or didn’t want to justify its nondisclosure requirements in court. This might be the starkest public example yet of why courts should be involved in reviewing NSL gag orders in all cases.

National security letters are a kind of subpoena that give the FBI the power to require telecommunications and Internet providers to hand over private customer records—including  names, addresses, and financial records. The FBI nearly always accompanies these requests with a blanket gag order, shutting up the providers and keeping the practice in the shadows, away from public knowledge or criticism.

Although NSLs gag orders severely restrict the providers’ ability to talk about their involvement in government surveillance, the FBI can issue them without court oversight. Under the First Amendment, “prior restraints” like these gag orders are almost never allowed, which is why EFF and our clients CREDO Mobile and Cloudflare have for years been suing to have the NSL statute declared unconstitutional. In response to our suit, Congress included in the 2015 USA FREEDOM Act a process to allow providers to push back against those gag orders.