Last week, in In re National Security Letter, the United States District Court for the Northern District of California found unconstitutional two sections of the federal law allowing the FBI to issue “National Security Letters” (“NSLs”) to secretly demand subscriber records from ISPs, telecom carriers and other electronic service providers when investigating international terrorism or conducting clandestine intelligence activities. An as-yet-unnamed telecommunications provider challenged the federal law and United States District Judge Susan Illston ordered the federal government to cease issuing NSLs and stop enforcing NSL gag orders, but stayed the order pending an expected appeal by the government to the Ninth Circuit.The district court found the nondisclosure provision in 18 U.S.C. § 2709(c), as well as the judicial review provisions of 18 U.S.C. § 3511(b), unconstitutional on grounds that they violate the First Amendment and separation of powers principles. Under the nondisclosure provision, a recipient of an NSL may not disclose to anyone other than an attorney that the FBI has requested such records.

5. 18 U.S.C. § 3511(b).6. Id.

1. 18 U.S. C. § 2709. 2. 12 U.S.C. § 3414. 3. 50 U.S.C. § 3162. 4. 15 U.S.C. § 1681v; 15 U.S.C. § 1681u. 5. 18 U.S.C. § 3511(b). 6.

The short answer is yes, but doing so is not always advisable. All the NSL statutes provide for Judicial Review of an NSL order under 18 U.S.C. § 3511. Under § 3511, a court may modify or set aside an NSL if it determines that the order is unreasonable, oppressive, or otherwise unlawful.

1.18 U.S. C. § 2709. 2.12 U.S.C. § 3414. 3.50 U.S.C. § 3162. 4.15 U.S.C. § 1681v; 15 U.S.C. § 1681u. 5.18 U.S.C. § 3511(b).6.Id. 7.50 U.S.C. § 1874.8.Id. 9.Semiannual Classified Congressional Reports concerning 2011.