In 2015, the Federal Bureau of Investigation (FBI) announced it would not use a national security letter to obtain a wiretap of an American.
Instead, the FBI would use a subpoena to obtain the telephone records of anyone it believed was communicating with a suspected terrorist, even if that person is not a suspect in a terrorism investigation.
The change in policy came after the Trump administration was rocked by revelations of widespread government surveillance and harassment of activists.
In the aftermath, Attorney General Jeff Sessions appointed former Justice Department officials to lead the FBI’s Counterterrorism and Cyber Division.
He also appointed a new director to oversee the bureau’s counter-terrorism efforts, replacing former director Andrew McCabe, who had served as acting director until his dismissal in August.
After the FBI announced its decision, the ACLU sued to block the use of national security letters in federal court.
The government argued that it was necessary to protect the privacy of Americans and would only be used to protect “important foreign intelligence information.”
“When the government acts as a conduit for government surveillance, the First Amendment is violated,” said ACLU attorney Ben Wizner.
“If the government has no constitutional basis for its actions, then it can’t spy on Americans or their private communications.”
A federal judge dismissed the lawsuit last year, but a federal appeals court upheld the judge’s decision, allowing the government to continue using the national security subpoenas.
In response to the ruling, the Justice Department asked a federal district court to reconsider, arguing that the National Security Letters are a “necessary tool” in fighting terrorism.
“The National Security Letter is a useful tool for preventing foreign intelligence activities that may pose a threat to the national interests of the United States,” wrote Attorney General John Ashcroft in a letter.
“Its purpose is to protect information that is relevant to national security investigations, and is not otherwise available to the general public.
If that information is necessary to identify terrorists or foreign terrorists, and there are no other effective means to do so, the National Special Security Program must be used.”
The Justice Department also argued that the subpoenas were not “a threat to privacy.”
In a statement, the department said, “The national security interests of this country do not rest on the privacy concerns of the vast majority of Americans.”
“The Department will continue to use these subpoenas to seek information that may assist the government in preventing, detecting, or disrupting terrorist attacks,” the statement said.