Appeals Court Very Concerned About Gag Orders On National Security Letters

from the now-do-something-about-it dept

Thu, Oct 9th 2014 8:14am — Mike Masnick

On Tuesday, Twitter sued the US government for the right to be more transparent about how many National Security Letters (NSLs) and FISA court orders it had received (even if the answer was zero). On Wednesday the appeal on last year's district court ruling saying that gag orders on NSLs were unconstitutional was heard in California, and the judges sounded quite skeptical of the government's argument. You can hear the ~1 hour hearing on the Court's website (it was supposed to livestream, but then didn't). The case involves a still unnamed service provider who challenged the gag order, represented by the EFF.

While questions from judges during oral arguments can often be misleading in terms of where the court eventually lands, at a first pass, the judges certainly sounded fairly skeptical of the DOJ's extreme claims. The idea that it would be impossible for the DOJ/FBI to review the gag order on every NSL? Really? The judges certainly seemed to recognize the general problem with a gag order with no end, and how that could be a very serious restriction on free speech. The government did its usual song and dance about how if it doesn't have this gag order power, people are put in danger, but at least from the hearing, it sounded like the court was skeptical.

Of course, now we have to keep waiting, to see what the panel decides. Hopefully it won't take all that long. Some of the judges certainly seemed to express concern about the length of time even this process has taken, so hopefully they will be more efficient in issuing a ruling. From there, it's likely that whoever loses may appeal (either for an en banc hearing by the entire 9th Circuit Appeals Court or to the Supreme Court). This process is still far from over, but it will be important to keep tabs on what happens in this case -- and it will likely impact Twitter's case, and other companies' attempts to be transparent about requests for information from the government.

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: 9th circuit, free speech, gag orders, national security letters, prior restraint
Companies: eff

15 Comments

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

Reader Comments

Subscribe: RSS

View by: Time | Thread

Skeptical Cynic (profile), 9 Oct 2014 @ 7:40am

Skeptically Cynical
I am also quite skeptical as to why it really even matters in a post Snowden era.

We know they are spying, we know they are asking others to spy on us for the Gov, we know they are doing all of this. We just don't know if they are actually caring about me and looking hard at me.

So the only reason I can think of that they would care about the number of requests being exposed is they are worried about the political fallout when it is found out that they are sending like 5 million a year to each every ISP, Website, hotspot operator, bubba backwoods website.

I think in reality it does not matter except they are worried that people will get mad that they are requesting so much so often.
[ link to this | view in thread ]
Ehud Gavron (profile), 9 Oct 2014 @ 7:46am

typo
"it sounded like the government was skeptical. "

-->

"it sounded like the Court was skeptical. "

E
[ link to this | view in thread ]
beech, 9 Oct 2014 @ 8:24am

Re: Skeptically Cynical
I think that its probably more about the government's culture of silence than anything. Everyone in the government has been totally convinced that the dissemination of any actual information at all will help terrorists and/or child molesters in some way, so they stay silent. So I doubt anyone is putting much thought in to how precisely this or that piece of information will help someone destroy America, just assume that it will some day and keep a lid on it.
[ link to this | view in thread ]
antidirt (profile), 9 Oct 2014 @ 8:28am

You can hear the ~1 hour hearing on the Court's website (it was supposed to livestream, but then didn't).

Thanks for the link. Listening now.
[ link to this | view in thread ]
Josh in CharlotteNC (profile), 9 Oct 2014 @ 8:32am

Re: Skeptically Cynical
why it really even matters

It matters for transparency.

Even post-Snowden, the public still does not have a good idea what is and how much they are being surveilled, and all in their own name. Don't confuse "peole who read Techdirt or are familiar with the debate" with "the general public".

"Consent of the governed" and "By the people, for the people" aren't just abstractions. It really matters what the government is doing in our names.
[ link to this | view in thread ]
Insomniac (profile), 9 Oct 2014 @ 8:54am

Insomnia cured?
by waiting for a fast ruling?
[ link to this | view in thread ]
Anonymous Coward, 9 Oct 2014 @ 8:56am

Re: Insomnia cured?
Don't bet on it.
[ link to this | view in thread ]
Skeptical Cynic (profile), 9 Oct 2014 @ 8:57am

Re: Re: Skeptically Cynical
I agree 100% it really does matter.
[ link to this | view in thread ]
Leigh Beadon (profile), 9 Oct 2014 @ 9:10am

Re: typo
fixed, thanks!
[ link to this | view in thread ]
Skeptical Cynic (profile), 9 Oct 2014 @ 9:12am

Re: Re: Skeptically Cynical
But how did that culture of silence happen? And do we really believe that they believe the dissemination of information will help anyone? Sure if it was high level stuff, but not generic statistics.

What would it matter to security if the NSA says tomorrow that it monitors 500 million communications each day? We would be like WTF? Who is be monitored? Is it me? What would matter would be the political fallout where averagely informed people screaming.
[ link to this | view in thread ]
Quiet Lurcker, 9 Oct 2014 @ 10:20am

Re: Re: Re: Skeptically Cynical
And do we really believe that they believe the dissemination of information will help anyone? Sure if it was high level stuff, but not generic statistics.

Doesn't signify. They believe it. That's enough for them to act as they have. And the 'generic statistics' can frequently be enough to reveal a lot. A pedestrian example. You drive by a certain building enough times, and see the same car sitting in the parking lot every time you drive by, you can safely conclude that the owner of the car probably is associated with that building in some way, probably in a work-related capacity. Run the plate, and you now know the owner of the car in question, and something about where they work.

Multiply that by who knows how many thousands, millions, billions (dare I say trillions) of times and you can get some pretty good and deep information.

What would it matter to security if the NSA says tomorrow...

If all the sordid details ever did get out, I firmly suspect there'd be an armed rebellion. Picture, if you will, what happened in Ferguson, MO, happening all over the country.

Yeah, it matters to the security and peace and quiet of the law-breakers who just happen to work for various government agencies.
[ link to this | view in thread ]
Anonymous Coward, 9 Oct 2014 @ 5:25pm

Re: Re: Insomnia cured?
Replying to your own comment as AC? (Your Gravatar gave you away)
[ link to this | view in thread ]
Mark Noo, 9 Oct 2014 @ 6:34pm

Slippery Slope
If the government loses it power to silence it citizens than it may as well have no authority at all. This government can only exist in secrecy, the American people would never put up with the B.S. the government is doing.
[ link to this | view in thread ]
Anonymous Coward, 9 Oct 2014 @ 11:34pm

If it goes to the 9th Circuit Appeals Court, can they decide that gag orders on NSLs are unconstitutional except when issued against Google/YouTube?
[ link to this | view in thread ]
Anonymous Coward, 6 Nov 2014 @ 7:08am

Since the American revolution, secrecy has always been a scrutinized issue in the media, press and public sphere. Whether people agree or disagree on whether or not the government should EMPLOY a classified position, the topic has consistently been the essence of conversation throughout the centuries. The press, in tandem with its purpose of transparency, has been involved with the spilling of many a classified, controversial issue. At times, the press reveals this classified information from an anonymous source in ways deemed valiant, courageous and necessary to defend the sanctity of the citizens of the United States. One instance of this is Edward Snowden coming clean about the NSA and its hazardous spying and examination of the private lives of ordinary citizens. This act shed important light on unconstitutional aspects embedded deep in our government that the public not only has the right to know, but needs to know. Another instance where the positivity of reported leaking is when the Guardian leaked NSA surveillance secrets on U.S. citizens provided by Edward Snowden.
[ link to this | view in thread ]