First created in the 1980s, national security letters and their nondisclosure provisions evaded judicial review until 2004. These secretive investigative tools allow federal agencies such as the FBI to compel disclosure of information about hundreds of thousands of people while also allowing the same agencies to unilaterally issue gag orders that can silence the people who receive these letters. This Note examines the nondisclosure provisions in the national security letter statutes. It argues that the nondisclosure provisions are unconstitutional prior restraints on speech and content-based speech restrictions. This Note then proposes a three-part solution that constitutionally balances the government's need to protect national security with its citizens' rights to freedom of speech.
Brian D. Eyink,
Constitutional Secrecy: Aligning National Security Letter Nondisclosure Provisions with First Amendment Rights,
58 Duke Law Journal
Available at: https://scholarship.law.duke.edu/dlj/vol58/iss3/3