Minnesota Law Review

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

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.

:: View PDF

News & Events

  • Minnesota Law Review Alum Remembered 45 Years After Death

    Minnesota Law Review alumnus Tom Cranna was honored at the Annual Banquet this Spring, 45 years after his death. Mr. Cranna was remembered for his contributions to the journal, the school, and the positive impact he had on his family and friends. The Devil’s Lake Journal published a memorial which [...]

  • Follow MLR on Twitter!

    The Minnesota Law Review is proud to announce that we are now on Twitter. Follow us @MinnesotaLawRev for information and updates concerning the petition period and deadlines, the opening and closing of article submissions, our 2014 Symposium: Offenders in the Community, and all other news concerning our authors and publications. [...]

  • Vol. 97 Lead Piece Cited in Al Jazeera Opinion Piece

    A recent Al Jazeera opinion piece that criticizes the Supreme Court’s Daimler decision cites to Volume 97′s lead piece, How Business Fares in the Supreme Court. You can read the Al Jazeera piece here. Share this: on Twitter on Facebook on Google+

  • Masthead for Volume 99 Board

    The masthead for the Board of Volume 99 of the Minnesota Law Review is now available. You can view the masthead here. Share this: on Twitter on Facebook on Google+

  • Above the Law Post Highlights MLR‘s Jump in Journal Rankings

    A recent post on Above the Law highlights the fact that the Minnesota Law Review was ranked 11th in the most recent 2013 edition of the Washington & Lee Law Review Rankings. You can read the post here. Share this: on Twitter on Facebook on Google+


cforms contact form by delicious:days