A federal judge has ruled that Google must comply with the FBI’s
warrantless requests for confidential user data, despite the search
company’s arguments that the secret demands are illegal.
CNET has learned that U.S. District Judge Susan Illston in San Francisco rejected Google’s request to modify or throw out 19 so-called National Security Letters, a warrantless electronic data-gathering technique
used by the FBI that does not need a judge’s approval. Her ruling came
after a pair of top FBI officials, including an assistant director,
submitted classified affidavits.
The litigation taking place behind closed doors in Illston’s courtroom
— a not-open-to-the-public hearing was held on May 10 — could set new
ground rules curbing the FBI’s warrantless access to information that
Internet and other companies hold on behalf of their users. The FBI issued
192,499 of the demands from 2003 to 2006, and 97 percent of NSLs include a mandatory gag order.
It wasn’t a complete win for the Justice Department, however: Illston
all but invited Google to try again, stressing that the company has only
raised broad arguments, not ones “specific to the 19 NSLs at
issue.” And she reserved judgment on two of the 19 NSLs, saying she
wanted the government to “provide further information” prior to making a
NSLs are controversial because they allow FBI officials to send secret
requests to Web and telecommunications companies requesting “name,
address, length of service,” and other account information about users
as long as it’s relevant to a national security investigation. No court
approval is required, and disclosing the existence of the FBI’s secret
requests is not permitted.
Because of the extreme secrecy requirements, documents in the San
Francisco case remain almost entirely under seal. Even Google’s identity
is redacted from Illston’s four-page opinion, which was dated May 20
and remained undisclosed until now. But, citing initial filings,
last month that it was Google that had initiated the legal challenge.
While the FBI’s authority to levy NSL demands predates the Patriot Act,
it was the controversial 2001 law that dramatically expanded NSLs by
broadening their use beyond espionage-related investigations. The
Patriot Act also authorized FBI officials across the country, instead of
only in Washington, D.C., to send NSLs.
EFF’s separate challenge
Illston, who is stepping down
from her post in July, said another reason for her decision was that
she did not want to interfere while the Ninth Circuit Court of Appeals
is reviewing the constitutionality of NSLs in an unrelated case that she
In that separate lawsuit
brought by the Electronic Frontier Foundation on behalf of an unnamed
telecommunications company, Illston dealt a harsh blow to the bureau’s
use of NSLs.
EFF had challenged the constitutionality of the portion of federal law
that imposes non-disclosure requirements and limits judicial review of
NSLs. Illston ruled that the NSL requirements “violate the First
Amendment and separation of powers principles,” and barred the FBI from
invoking that language “in this or any other case.” But she gave the
Obama administration 90 days to appeal to the Ninth Circuit, which it
did on May 6
Neither the FBI nor Google responded to requests for comment. (In March, Google began publishing summary statistics about NSLs it received, making it the first major Internet company to do so.)
These aren’t the first cases to tackle whether NSLs, including gag orders, are constitutional or not. In a 2008 ruling (PDF
), the Second Circuit Court of Appeals handed down a mixed decision.
A three-judge panel of the Second Circuit took an odd approach: the
judges agreed “that the challenged statutes do not comply with the First
Amendment,” but went on to rewrite the statute on their own to make it
more constitutional. They drafted new requirements, including that FBI
officials may levy a gag order only when they claim an “enumerated harm”
to an investigation related to international terrorism or intelligence
Illston’s decision in the Google NSL case said the FBI had submitted
“classified” evidence “intended to demonstrate that the 19 NSLs were
issued in full compliance with the procedural and substantive
requirements imposed by the Second Circuit.”
That includes classified declarations submitted by Stephanie Douglas
, executive assistant director of the FBI’s national security branch, and Robert Anderson
, assistant director of the counterintelligence division at FBI headquarters.
A 2007 report
by the Justice Department’s inspector general found “serious misuse” of
NSLs, and FBI director Robert Mueller pledged stricter internal
controls. Mueller has called the investigative technique invaluable.