In a key ruling on September 6th a U.S. District Court Judge has ruled unconstitutional the amended Patriot Act’s National Security Letter (NSL) provision that allows the FBI to send secret demands/NSLs to electronic communications service providers (ECSPs) demanding access to subscriber or transactional records, to obtain financial and credit documents and to obtain library records about subscribers.

NSLs were allowed prior to 2001 under the Electronic Communications Privacy Act, but were supposed to be used only for investigations of terrorists or spies acting on behalf of a foreign power. After enactment of the Patriot Act in 2001, NSLs were given broader authority to request confidential customer information that was “relevant” to an investigation without requiring court approval, and NSLs also required a “gag” order on those who received the request for information.

The federal Judge ruled that the gag provisions were unconstitutional because no prior court approval was required before they were issued, violating the separation of powers provision where judicial matters are reserved solely for the judicial branch of the U.S. government; and that NSLs also violated First Amendment Constitutional guarantees of freedom of speech and expression. The U.S. Justice Department did not indicate whether it would appeal the Judge’s ruling.

This ruling should help take the burden off Internet Service Providers, banks, lending institutions and librarians who have been put in the uncomfortable position of having to reveal confidential subscriber information about their customers, and also being unable to discuss it.  The ruling also requires there to be more justification and judicial involvement before such a request for customer confidential information can be required.