Document Type

Article

Publication Year

2016

Journal Title

Suffolk University Law Review

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

FIle Type

PDF

Share

COinS
 
 

To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.