Court Says FBI Must Review Its NSL Gag Orders Every Three Years, Rather Than Almost Never

from the a-small-shift-in-the-secrecy-status-quo dept

The magical, wonderful, oft-abused National Security Letters have been deemed Constitutional, thanks to the vague promise of reviews by courts and government agencies to determine whether or not the normally-indefinite gag orders accompanying them can stay in place.

The USA Freedom Act took away the "indefinite" part of the equation, stipulating that NSL gag orders must be justified by periodic reviews. Unfortunately, "periodic" was left open-ended. The language only specifies "appropriate intervals." It does place the burden on the government to prove that a NSL's gag order is still necessary, but makes no specific demands on how often the government should have to make these assertions.

The FISA DC District Court, however, has specified what a "periodic review" should entail -- at least narrowing down what period "periodic" should mean.

In this order [PDF], a redacted company exercised its USA Freedom Act option to demand a review of gag orders connected to two NSLs it had received. After some in camera presentations to the FISA court, along with some discussion between the NSL recipient and the FBI, it was agreed that the gag orders could stay in place for the time being, but that the FBI should be given the burden of specifying a time frame for periodic reviews, rather than forcing the recipient to file petitions repeatedly until the gag orders were finally determined to be no longer necessary.

The order redacts the number of years these gag orders have been in place, but it's safe to assume the number hidden behind the gray box is larger than one.

The court looks to the Attorney General's own gag order termination policy, crafted in response to stipulations in the USA Freedom Act. Unfortunately, it doesn't do much to narrow down what sort of "period" a "periodic review" covers. The policy says the FBI only needs to review its NSL gag orders every three years or at the close of an investigation. As the court notes, this is far from satisfactory.

Such procedures, as [REDACTED] points out, leave several large loopholes. First, there is no further review beyond these two, meaning that where a nondisclosure provision is justified at the close of an investigation, it could remain in place indefinitely thereafter. Second, these procedures by their own terms apply only to "investigations that close and/or reach their three-year anniversary date on or after the effective date of these procedures;" as a result "a large swath of NSL nondisclosure provisions… may never be reviewed and could remain unlimited in duration." Third, for long-running investigations, there could be an extended period of time -- indefinite for unsolved cases -- between the third-year anniversary and the close date.

The court points out that the loopholes pretty much nullify the legislation's demand for periodic NSL gag order reviews. The court ordered the FBI to explain why it should not be able to handle annual reviews of its NSL nondisclosure requirements.

The FBI complained that doing so would be "cumbersome." The court agreed that reviewing every NSL every year would be too burdensome for the agency. However, the decision just glides past the jaw-dropping number of NSLs issued by the FBI -- 16,000 annually -- without further comment.

So, the FBI, having burdened itself by using NSLs rather than court orders or warrants, isn't required to perform annual reviews of its gag orders. Fortunately, it's no longer allowed to simply follow the loophole-filled policy issued by the Attorney General. The opinion notes that the AG's policy "seems inconsistent with the intent of the law." Recent FISA court addition Judge James Boasberg pulls a number out of the air and declares it good:

The Court believes that, given both the facts and the circumstances of this particular case and the legal authority discussed above, a triennial review fairly balances the specific burdens on the FBI against the countervailing interest that [REDACTED] has in avoiding a lengthy and indefinite nondisclosure bar.

The gag orders that are currently in place (and have been in place for an indeterminate number of years) are allowed to remain. The FBI will have to review these every three years from now on. This is better than the AG's policy and much better than the open-ended language of the USA Freedom Act.

But it's unclear whether this order is meant to govern the FBI's other NSLs, or simply the two involved in this particular case. There's nothing in the opinion that suggests this is a blanket policy change, but as the court notes earlier in the decision, it seems likely that anything granted to this particular entity will be requested by others in the same position. Given the reasoning used to make this determination, it would be difficult to imagine a situation where similarly-situated recipients would not be able to avail themselves of the court-ordered review process -- rather than being forced to file review petition after review petition for the rest of whatever.

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Filed Under: doj, fbi, fisa, fisa court, fisc, gag orders, nsl, nsls, reviews