Note: Gagging on the First Amendment: Assessing Challenges to the Reauthorization Act's Nondisclosure Provision

By Kyle Hawkins. Full text here.

In September, 2007, a federal court struck down the nondisclosure provisions of the Electronic Communications Privacy Act (ECPA), which governed the use of national security letters (NSLs). While civil liberties groups praised the decision, the FBI mourned the loss of a crucial tool in its antiterrorism investigations. Indeed, the FBI reports that it employed NSLs frequently to obtain basic electronic communications information on suspected terrorists before using that information to justify to courts more extensive searches. The FBI’s NSL strategy depends on the secrecy that the ECPA’s nondisclosure provision guaranteed. Now, without a valid nondisclosure provision, the FBI can no longer effectively use a major antiterrorist surveillance tool.

In striking down the ECPA’s nondisclosure provision, the trial court applied strict scrutiny and held that the nondisclosure provision violated the First Amendment. The government, in defending the NSL statute, unsuccessfully argued for intermediate scrutiny based on prior rulings on grand jury secrecy. Based on the oft-overlooked national security jurisprudence, this Note offers a critique of the NSL cases and concludes that intermediate scrutiny is the more appropriate standard. Reviewing courts should recognize that NSL cases invoke critical aspects of national security in ways that typical First Amendment cases do not. Intermediate scrutiny in matters of national security would more effectively balance individual liberties against the crucial interests of national security that the Constitution charges the executive branch with protecting.