When does the Constitution require procedural safeguards for infringements on First Amendment rights? Surprisingly, this general question has never been answered. The absence of procedural protections for First Amendment rights can yield enormous and substantive implications. One particular investigative tool, the National Security Letter (NSL), is illustrative. Each year, the FBI uses tens of thousands of NSLs to obtain customer “toll billing” information, or transactional records—such as records related to telephone calls, emails, text messages, online forums, tweets, or Facebook messages—from service providers. FBI nondisclosure orders, which usually accompany NSLs, prevent the recipient from speaking about the requests. Since 2001, there have been only a handful of known challenges to NSLs.
This Article argues that the near total absence of procedural safeguards for NSL issuance violates the First Amendment rights of subscribers whose records the FBI obtains.