The FBI’s Secret Surveillance Program Is About to Go on Trial

A federal appeals court this week will review whether the government can secretly conduct electronic surveillance on Americans without first obtaining a warrant. The case, to be brought before a panel of the U.S. Court of Appeals for the 9th Circuit on Wednesday, could have sweeping digital-privacy implications, and it represents one of the most direct challenges to the legal authority for government spying in the post-Snowden era. Many observers expect the case to ultimately reach the Supreme Court. At issue is whether the FBI can use so-called national security letters, or NSLs, to compel companies to hand over communications data or financial records of certain users for the purposes of a national security investigation. These letters permit the FBI to collect telephone and Internet data of suspects without court approval and they often place a gag order on companies, which prevents them from disclosing the government order. National security letters have been around since the late 1970s but have grown in importance and frequency in recent years. Hundreds of thousands of such letters have been issued since the post-9/11 USA Patriot Act expanded their authority, and an overwhelming majority have been accompanied by gag orders. The Justice Department argues that NSLs are necessary to protect national security and thwart terrorist attacks. But in 2011, an unidentified telecommunications company, represented by open-Internet activists with the Electronic Frontier Foundation, challenged the authority of an NSL it received, as well as the gag order preventing public disclosure. Last year, the case landed in front of U.S. District Judge Susan Illston, who ruled that the FBI's use of NSLs represented an unconstitutional breach of the First Amendment. She found the limited, after-the-fact judicial oversight of NSLs insufficient and ordered the government to cease using them and, additionally, to halt enforcement of their gag orders. But Illston allowed the government 90 days to appeal, and because of "significant constitutional and national security issues at stake," enforcement of her ruling was stayed. Illston's opinion, which was seen as a startling rebuke of intelligence agencies' surveillance powers, came months before former National Security Agency contractor Edward Snowden leaked a trove of top-secret documents revealing the size and scope of several of the government's surveillance programs. The Snowden revelations have broadened the significance of this case, privacy hawks argue.