Watching the watchdogs: assessing a First Amendment claim against the government's use of national security letters to track journalists' newsgathering activities

The FBI's use of National Security Letters (NSLs) to secretly demand customer records from communications providers in terrorism-related investigations has been criticized as an intrusion on privacy rights. The potential use of NSLs to collect the records of journalists, however, raises an additional set of concerns by threatening to expose and deter confidential sources. While the Fourth Amendment does not protect communications records in the hands of third-party service providers from searches or seizures by the government, when NSLs are issued for journalists' communications records, the First Amendment may separately provide a right to certain procedural protections in order to guard against NSL abuses that threaten protected newsgathering activities. Limits on this First Amendment right, however, are likely justified by the government's countervailing interests in national security. Those seeking to protect journalists' records from disclosure via NSLs would therefore be best advised to pursue legislative reform rather than constitutional remedies

St. Louis Character: Combining Passions for Law and Media, Lisa Hoppenjans Fights for the Public\u27s Right to Know

Lisa Hoppenjans is the first director of the First Amendment Clinic and an assistant professor of practice in the Washington University School of Law