They are used by the FBI to bypass courts and conduct secret surveillance.  But now, in what could prove to be a major blow to the Department of Justice, a federal court has found that National Security Letters are unconstitutional.

In a ruling released today, U.S. District Judge Susan Illston said that NSLs suffer from “significant constitutional defects” and violate the First Amendment because of the way they can be used to effectively gag companies that receive them.  Illston has ordered the FBI to stop issuing NSLs and cease enforcing their gag provisions in all cases.  However, the ruling has been stayed for 90 days, giving the government the chance to appeal to the 9^th Circuit Court of Appeals because of the “constitutional and national security issues at stake.”

NSLs were created in the late 1970s to help the FBI obtain information about suspected foreign spies. But their use was expanded under the Patriot Act following 9/11, and they can now be used to order companies to provide data on Americans.  Last week, Google disclosed that it had been forced to hand over data on thousands of its users in recent years after being served with NSLs—but it was able to divulge only vague information, rather than exact numbers.  A company that receives a NSL can be forbidden from talking about it with anyone but a lawyer, or else potentially face years in prison.

Between 2003 and 2006 nearly 200,000 NSLs were used by the FBI to obtain information about people.  In 2007, a report by the Justice Department’s inspector general raised concerns about the use of the letters to “obtain vast quantities of telephone numbers or other records with a single request.”  The DOJ said in a statement today that it was reviewing the California ruling.  It is likely that it will file an appeal. In the meantime, civil liberties and privacy groups will continue to celebrate what they are claiming as a landmark victory that will "help restore balance between liberty and security."

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Judge's Ruling Blows Hole In FBI's Illegal Privacy Program

Guardian

The Californian telecom company thought to be behind a stunning court victory that has blown a hole in the FBI's highly secretive system for collecting US citizens' private data has hailed the "significant" legal breakthrough. Credo, based in San Francisco, spoke out after a federal judge ordered the US government to stop issuing what are called "national security letters" – demands for data that contain in-built gagging clauses that prevent the recipients disclosing even the existence of the orders or their own identity.

Michael Kieschnick, chief executive of Credo Mobile, hailed the judge's order as "the most significant court victory for our constitutional rights since the dark day when George W Bush signed the Patriot Act."

Kieschnick said:

"This decision is notable for its clarity and depth.  From this day forward, the US government's unconstitutional practice of using national security letters to obtain private information without court oversight and its denial of the first amendment rights of national security letter recipients have finally been stopped by our courts."

Last year the FBI sent out more than 16,000 of the letters relating to the private data – mainly financial, internet or phone records – of more than 7,000 Americans.

Previous court action has led to the FBI being accused of abusing its powers under the NSL statute by issuing the letters far more extensively than in the limited counter-terrorism situations for which they were devised.  The letters are among the most secretive tools of any deployed by the US state.  As an additional affront, civil liberties groups say, the FBI is allowed to issue the letters without approval from a judge.  Only the green light of a local FBI chief is required.