Document Type
Article
Publication Date
10-2016
Journal Title
Suffolk University Law Review
ISSN
0039-4696
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.
First Page
367
Last Page
408
Num Pages
42
Volume Number
49
Issue Number
3
Publisher
Suffolk University Law School
Recommended Citation
Hannah Bloch-Wehba,
Process Without Procedure: National Security Letters and First Amendment Rights,
49
Suffolk U. L. Rev.
367
(2016).
Available at:
https://scholarship.law.tamu.edu/facscholar/1404