EFF Sues Over National Security Letters... But Can't Tell You Who Its Clients Are

from the because-secrecy dept

Tue, Mar 4th 2014 9:36am — Mike Masnick

The ridiculous (and most likely illegal) gag orders around widely abused "National Security Letters" (NSLs) is pretty widely known. It's created absurd situations in which companies have had to go to court secretly without being able to admit that they were fighting on behalf of their users, except in rare cases where the gags are finally lifted.

Well, here we go again, as the EFF has challenged NSLs issued to two separate companies -- one telco and one internet company. However, because of the gag orders, EFF isn't even allowed to say who its clients are in these filings.

The Electronic Frontier Foundation (EFF) filed two briefs on Friday challenging secret government demands for information known as National Security Letters (NSLs) with the Ninth Circuit Court of Appeals. The briefs—one filed on behalf of a telecom company and another for an Internet company—remain under seal because the government continues to insist that even identifying the companies involved might endanger national security.

While the facts surrounding the specific companies and the NSLs they are challenging cannot be disclosed, their legal positions are already public: the NSL statute is a violation of the First Amendment as well as the constitutional separation of powers.

We have yet to see any good reason for why the government can claim that the mere fact that a company has received a National Security Letter needs to be classified.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: eff, first amendment, gag order, nsl, secrecy

32 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

zip, 4 Mar 2014 @ 9:51am

But the vast majority of things that are classified have little or nothing to do with national security. If there's a compelling need to keep WWI-era documents classified nearly a century later, then surely the "needs to be kept secret" argument can be applied to virtually anything.
[ link to this | view in thread ]
Anonymous Coward, 4 Mar 2014 @ 9:54am

Couldn't they have just simultaneously held a press release at the same time the suit was being filed before the court could issue a gag order?
[ link to this | view in thread ]
Anonymous Coward, 4 Mar 2014 @ 9:57am

Re:
No, because the NSL's are considered Classified information by the Government.
[ link to this | view in thread ]
Anonymous Coward, 4 Mar 2014 @ 9:58am

We have yet to see any good reason for why the government can claim that the mere fact that a company has received a National Security Letter needs to be classified.

I'm not sure I know what you meant to say there... is this it?

We have not yet seen a good reason for the government to classify the mere fact that a company has received a National Security Letter.

what you actually said (after pulling apart the convoluted grammar) was,

We have yet to see any reason for the government to be accountable to us.
[ link to this | view in thread ]
jackn, 4 Mar 2014 @ 9:59am

gag orders are only effective if you honor them. Who are they going to arrest? a corporation?
[ link to this | view in thread ]
Anonymous Coward, 4 Mar 2014 @ 9:59am

Classified...
Should only be for the Military or Foreign covert operations.

Diplomacy, Policing, & Court should NEVER be allowed to EVER be Classified and neither should a Judge be able to issue a GAG order unless it is Military or Foreign covert operations in nature.

Every problem the government has with its citizenry or vice versa should be a matter of public record PERIOD! Any kinda of secret enforcement policy can be used to remove you of any and all rights without recourse by any over zealous official.
[ link to this | view in thread ]
This comment has been flagged by the community. Click here to show it

Anonymous Coward, 4 Mar 2014 @ 10:01am

Does the EFF do ANYTHING but whine over stupid, sensationalistic nonsense? Who cares.
[ link to this | view in thread ]
Anonymous Coward, 4 Mar 2014 @ 10:02am

Re:
Security through obscurity. Hard to find what is important when you have to wade through a sea of classified data. I am against it but that is why I think it is all classified.
[ link to this | view in thread ]
jackn, 4 Mar 2014 @ 10:04am

Re:
I care alot
[ link to this | view in thread ]
jilocasin (profile), 4 Mar 2014 @ 10:16am

Possible reason....
Wait a moment while I try to twist my thought processes into an approximation of a paranoid government spook.......

The reason to keep the organization that receives a National Security Letter secret is that if the "target" uses that company and found out that they had just received a NSL then they would;

1. Know we were tracking them
2. Stop using that company
3. Stop using that method of communication, bank account, brand of toothpaste

[O.K. maybe not that last one.... maybe.]

Normally we [the government] would only keep this information classified ['gagged'] until we brought the perpetrator to justice [filed a case in a court of law]. New terrorist threat models [government speak for ignoring the constitution] require us to continually collect intelligence on existing and emerging threats [ a.k.a. people we know are bad, people we think might be bad someday, and people we just don't like, heck everyone just to be safe]. Contrary to terrorist apologists [a.k.a. people who care about the constitution] these National Security Letter recipient non disclosure [gag] orders are not permanent, nor unending. Recipients are free to discuss them, once the terrorist threats to the country have been eliminated [so that would be just like the legal term for copyright limits, forever minus one day].

See, that wasn't do hard to understand was it....[I think I need a mental shower now]?
[ link to this | view in thread ]
Anonymous Coward, 4 Mar 2014 @ 10:19am

Re:
This is needlessly combative. Verbose does not equal confusing.
If you're here to pick grammar nits, then please leave. But if you must stay, there's a mismatched copula in the first sentence that doesn't seem to have bothered you.
[ link to this | view in thread ]
Anonymous Coward, 4 Mar 2014 @ 10:21am

Re:
I care.

Clearly you don't give a damn about your rights, and that's fine.
[ link to this | view in thread ]
Anonymous Coward, 4 Mar 2014 @ 10:25am

Re: Possible reason....
While I understand the idea you put forward it should not matter. The negatives for abuse simply do not out weight the benefits of nailing the bastard in question.

The founding fathers set up this nation and its liberties knowing and watching that whole towns could be, would be, or where burning down around their ankles, yet they did not bend over and blast liberty out of their ass so they could protect us from those pesky terrorists!

Any "Wise" person would know that human kind has been reasoning with each other and twisting words since the beginning of time to justify all manner of evil that can be conceived. NSL, Secrets, & Classified are all born of these "reasonings"!
[ link to this | view in thread ]
Anonymous Coward, 4 Mar 2014 @ 10:29am

It's easier to abuse power standing in the shadows, than it is standing in the light. That's why.
[ link to this | view in thread ]
DannyB (profile), 4 Mar 2014 @ 10:32am

Re: Re:
Perhaps I can clarify the deeper issue.

If there is a minor grammar or spelling error on TD, then TD has no credibility and can safely be dismissed as a bunch of thieving pirate kids and labeled as 'pirate central' facilitators, enablers and 'piracy apologists'.
[ link to this | view in thread ]
jilocasin (profile), 4 Mar 2014 @ 10:34am

Re: Re: Possible reason....
I never said that I agreed with it.

I just proposed a possible reason for those people who say that couldn't think of any reason why the government thought it was a good idea.
[ link to this | view in thread ]
DannyB (profile), 4 Mar 2014 @ 10:34am

Re:
Being right doesn't mean you won't suffer consequences.

Ask anyone who has lived in a police state. I think history has plenty of examples. Why would this newly forming police state be different?
[ link to this | view in thread ]
Michael Donnelly (profile), 4 Mar 2014 @ 10:34am

Stop feeding the trolls.
Guys, seriously.

Just downvote and ignore. Otherwise, it will continue to get worse.
[ link to this | view in thread ]
DannyB (profile), 4 Mar 2014 @ 10:36am

Re: Classified...
Coming soon!

The MPAA / RIAA is given power to classify information as top secret. After all, the global economy is at stake.
[ link to this | view in thread ]
DannyB (profile), 4 Mar 2014 @ 10:37am

Re: Re:
Why would that be surprising? Since when have copyright maximalists given a damn about anybody's rights?
[ link to this | view in thread ]
Brazenly Anonymous, 4 Mar 2014 @ 10:39am

Re:
The grammar here is fine. Your reading comprehension might need some work. In indented form to show the nesting:

We have yet to see
>any good reason for why
>>the government can claim
>>>that the mere fact
>>>>that a company has received a National Security Letter
>>>Needs to be classified

Does not exist (evidence supporting (government claim "item needs classification"))

In fact, I'm having a little trouble figuring out how you managed to parse this any other way.
[ link to this | view in thread ]
Anonymous Coward, 4 Mar 2014 @ 11:09am

Re: Re:
That would mean they couldn't talk about the contents of the NSL not state who their client was.
[ link to this | view in thread ]
Anonymous Coward, 4 Mar 2014 @ 11:34am

Re: Re:
That is not fine because is enough people don't care then rights are removed from those that care as well.
[ link to this | view in thread ]
Anonymous Coward, 4 Mar 2014 @ 11:35am

Re: Re: Re: Possible reason....
You did mention that you had to twist your thought processes to produce that. I did not intend for my post to be directed at you in particular, so I apologize for that. I did still feel that a rebuttal would be good to have for anyone else that could use a nudge in the right direction, well hopefully.
[ link to this | view in thread ]
Anonymous Coward, 4 Mar 2014 @ 11:40am

Re: Stop feeding the trolls.
I used to think that feeding the trolls is a bad thing. Sometimes its okay to feed them. 2 Positive benefits can be had from it. 1 positive benefit is that they show how crazy they are and will drive others away from their drivel. 2nd positive benefit is that a well rounded and thoughtful retort may help another conflicted individual from succumbing. Either way... ignoring the troll is always a mixed bag and has negative consequences either way.

In the name of freedom I would rather wade through troves to trolls than to be silenced as a troll myself. I have been called a troll myself because I felt that strongly about some subjects.
[ link to this | view in thread ]
Rich Kulawiec, 4 Mar 2014 @ 11:45am

A government of the people...
...should perform its duties in full view of the people (with EXTREMELY rare exceptions). A government which doesn't do this is not only failing to live up to its fundamental responsibilities, it's also incompetent.
[ link to this | view in thread ]
Anonymous Coward, 4 Mar 2014 @ 12:20pm

Re: Re: Re:
But sadly, people have a right to not care about their rights...

They do not, however, have a right to tell others what they can or cannot care about :)
[ link to this | view in thread ]
This comment has been flagged by the community. Click here to show it

Anonymous Coward, 4 Mar 2014 @ 12:22pm

Re: Re:
What does the EFF have to do with rights except for the right of tinfoil hat nutters to whine about everything?
[ link to this | view in thread ]
Duh, 4 Mar 2014 @ 12:46pm

The reason they cannot even reveal the name of the service provider is because the ONE person that uses Verizon wireless will realize they he is being watched and change his communications!

Duh.
[ link to this | view in thread ]
Anonymous Coward, 4 Mar 2014 @ 1:15pm

Re: Re: Re:
From https://www.eff.org/legal-victories

Apple v. Does - https://www.eff.org/cases/apple-v-does
EFF defended online journalists and their rights to protect the confidentiality of sources as offline reporters do.

Online Policy Group v. Diebold - https://www.eff.org/cases/online-policy-group-v-diebold
EFF protected online speakers by bringing the first successful suit against abusive copyright claims under the Digital Millennium Copyright Act (DMCA).

Bernstein v. US Department of Justice - https://www.eff.org/cases/bernstein-v-us-dept-justice
EFF established that computer code is speech and shielded the developers of privacy-protecting software from government censorship.

Steve Jackson Games v. Secret Service Case Archive - https://www.eff.org/cases/steve-jackson-games-v-secret-service-case-archive
EFF set one of the first precedents protecting computer communications from unwarranted government invasion.

MGM v. Grokster - https://www.eff.org/cases/mgm-v-grokster
EFF defended the right of innovators to build new technologies without begging Hollywood's permission first.

Sony BMG Litigation Info - https://www.eff.org/cases/sony-bmg-litigation-info
EFF held Sony BMG accountable for infecting its customers' computers with software that created grave security vulnerabilities and let the company spy on listening behavior.

USA v. Pen Register (Cellphone Tracking Cases) - https://www.eff.org/cases/cellphone-tracking-cases-usa-v-pen-register
EFF fought the government's attempts to track the location of a mobile phone user without sufficient evidence.

ALA v. FCC - https://www.eff.org/cases/ala-v-fcc
EFF established that the FCC and Hollywood don't control your TiVo - you do.

ACLU v. Reno II - https://www.eff.org/cases/aclu-v-reno-ii
EFF extended free speech protections online, successfully challenging the constitutionality of Internet censorship laws.

(post will probably be delayed for moderation with the number of URLs, but no big deal)
[ link to this | view in thread ]
Anonymous Coward, 4 Mar 2014 @ 1:47pm

Re: Re: Re:
Think about which government you're talking about here. The NSLs state that the very fact that a company has received an NSL is an Official Secret. That's why the companies must remain anonymous, even if it's an open secret who the companies actually are.
[ link to this | view in thread ]
Anonymous Coward, 10 Mar 2014 @ 12:05pm

Re: Re: Re: Re:
It won't read your posts. It's just a troll, probably computer generated.
[ link to this | view in thread ]