Appeals Court Agrees Government Can Tell NSL Recipients To STFU Indefinitely
from the cram-that-in-your-gag-hole,-transparency-activists dept
The Ninth Circuit Court of Appeals has just handed down a terrible decision in a fight against National Security Letter gag orders. The EFF has been working with plaintiffs Cloudflare and Credo Mobile to have these indefinite gag orders found unconstitutional.
Unfortunately, there's still nothing hopeful on the horizon in terms of government transparency. The Appeals Court has upheld the lower court's decision, finding this form of prior restraint somehow Constitutional. From the decision [PDF]:
The panel held that § 2709(c)’s nondisclosure requirement imposes a content-based restriction that is subject to, and withstands, strict scrutiny. The panel further held that, assuming the nondisclosure requirement was the type of prior restraint for which the procedural safeguards set forth in Freedman v. Maryland, 380 U.S. 51 (1965) were required, the National Security Letters law provided those safeguards. The panel concluded that the nondisclosure requirement does not run afoul of the First Amendment.
The panel notes the statutory framework for NSLs allows the government to ask for secrecy for an indefinite period of time to ensure investigations aren't interfered with or suspects prematurely notified of the government's interest in their activities. The statutes say the government "may" ask for secrecy. However, the FBI -- in the thousands of NSLs it issues every year -- reads this as "will." No one receives an NSL without a gag order attached.
Challenging gag orders is easier than it used to be, but it's still far from ideal. Rather than limited-time gag orders or stiffer requirements for the FBI to meet before deploying them, recipients have been given modestly-improved avenues of recourse. That may help going forward, but it's doing very little to address NSLs/gag orders sent out before the USA Freedom Act reforms in 2015. Old NSL gag orders are still mostly unassailable. At the center of this case are NSLs dating back to 2011 and 2012. For reasons only known to the government, these half-decade-old gag orders are still in place.
The court recognizes gag orders are content-based restrictions of speech. This means the government has to hit a higher bar to justify this control of citizens' speech. But the Appeals Court agrees with the lower court: to meet this high bar, the government just needs to deploy national security mantras.
As a threshold matter, we readily conclude that national security is a compelling government interest. Indeed, the Court has recognized that “[e]veryone agrees that the Government’s interest in combating terrorism is an urgent objective of the highest order.” “It is ‘obvious and unarguable’ that no governmental interest is more compelling than the security of the Nation.”
By the same token, keeping sensitive information confidential in order to protect national security is a compelling government interest. See Dep’t of the Navy v. Egan, 484 U.S. 518, 527 (1988) (recognizing “the Government’s compelling interest in withholding national security information from unauthorized persons in the course of executive business” (internal quotation marks omitted)); Snepp v. United States, 444 U.S. 507, 509 n.3 (1980) (“The Government has a compelling interest in protecting both the secrecy of information important to our national security and the appearance of confidentiality so essential to the effective operation of our foreign intelligence service.”).
The plaintiffs pointed out that while the USA Freedom Act gave them new tools to challenge NSL gag orders, it also lowered the standards governing the attaching of gag orders. Instead of nondisclosure demands being approved only by the FBI Director, any number of designees could perform approvals. The court responds by saying "Trust the FBI."
[T]he new 2015 provision allowing disclosures to “other persons as permitted by the [FBI] Director” or the Director’s designee, id. § 2709(c)(2)(A)(iii), merely provides the FBI with more flexibility to tailor the scope of the nondisclosure provision. We reject the recipients’ argument that this provision gives the government unfettered discretion and therefore creates a system of insufficiently cabined prior restraints. Even if the NSL law is determined to be the type of regulation for which procedural safeguards are required (see section V, infra), the law as a whole imposes narrow, objective, and definite standards on the government before it can issue a nondisclosure requirement…
The fact that the statute also gives the FBI Director or a designee discretion to make additional exceptions to the nondisclosure requirement does not lessen the adequacy of the clear standards imposed on these officials before issuing a nondisclosure requirement in the first place.
The court also says this isn't a case of prior restraint, even though each NSL arrives with some legal language preventing recipients from even acknowledging the NSL's existence. The panel declares NSL recipients have no "intent" to speak, so telling them not to talk somehow doesn't damage their First Amendment rights.
[N]SL law prohibits the disclosure of a single, specific piece of information that was generated by the government: the fact that the government has requested information to assist in an investigation addressing sensitive national security concerns, i.e., “to protect against international terrorism or clandestine intelligence activities.” 18 U.S.C. § 2709(b)(1). As the Second Circuit noted, “[u]nlike an exhibitor of movies,” the recipient of a nondisclosure requirement “did not intend to speak and was not subject to any administrative restraint on speaking prior to the Government’s issuance of an NSL.”
So, I guess it's not prior restraint because companies could talk vaguely and non-specifically about NSLs they might receive, but aren't allowed to talk about any NSLs they have received until the government says it's ok. Seems legit.
The next step for the EFF and a number of NSL recipients is the Supreme Court. Given the ongoing deference to anything national security-related, it would be a surprise if the nation's top court reversed two lower court decisions. It may decide it's not even worth reviewing if petitioned. As it stands now, the government can demand indefinite silence from service providers thousands of times a year… all supposedly without violating the Constitution.
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Filed Under: 9th circuit, first amendment, free speech, gag orders, national security, national security letters, nsl, nsls
Companies: cloudflare, credo mobile, eff
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Re:
This is not another step to removing safeguards, this is the "failure of a safeguard" that is the courts. All the safeguards are still there, they just are not working.
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Re: Re:
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Re: Re: Re:
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the recipient of a nondisclosure requirement “did not intend to speak and was not subject to any administrative restraint on speaking prior to the Government’s issuance of an NSL
An excellent argument here. Combined with the general requirements for legal standing it allows literally any and all prior restraint for any reason provided that the government is careful about when they apply it. Quite simply, the government must first pass a general prior-restraint law of some sort. They then must very carefully not attempt to enforce this law on anyone who was alive at the time the law was passed. See, people who were not alive before the government passed the law, could not have intended to speak prior to the government's action, and therefore are not actually being restrained. And as long as the government does not attempt to apply the law to somebody who was alive when it was issued (and therefore might have intended such speech), there is no legal standing with which to challenge it.
I guess it's a good thing the US government is too dysfunctional to make true long term plans.
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28th Amendment
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Re: 128th Amendment
"A Compelling Government Interest" is a SCOTUS favorite imagining to override any and all citizen protections in the Bill of Rights.
Think of it like the "mandatory arbitration" clause imposed on customers of big corporations (e.g. Verizon). If you have a contract dispute with the corporation, you must allow an "arbitrator" employed by that corporation to 'objectively' decide who is right. No surprise that the arbitrator decides in favor of his employer most of the time.
Totally naive to trust constitutional ink on paper to defend your rights, or think government judges are impartial arbiters.
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Re: Re: 128th Amendment
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Re:
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New lines on cable bills...
When they receive one of these gag orders, that line will suddenly be missing...
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Re: New lines on cable bills...
People have done stuff like that, and it's still legally untested (except maybe in secret courts)… but really, a cable company who cares about privacy? And for free? You should have written "$5" there to be plausible.
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Re: Re: New lines on cable bills...
Adding this line to everyone's bill shows a clear and prior intent to talk.
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While I can't say I'm surprised, this makes zero sense. Of course people who haven't been gagged yet aren't gagged prior to receiving the gag order. That's tautologically true and completely misses the point.
According to this logic, any company that routinely assures the public "We have not received 0 NSLs. We have not received 1 NSL. We have not received 2 NSLs. ..." prior to receiving any is not restrained, but has demonstrated an intent to speak, and so could ignore this particular ruling. Further, under this standard, it would be legal (and very silly) for the company to discontinue the specific assurance made untrue by the government, but continue to speak all the true statements enumerating all the numbers that do not match the count of received National Security Letters. The government would doubtless try to crush anyone who tried this, because only the government is permitted to misuse legal technicalities. Mere subjects must abide by the spirit and by the letter. The government abides by neither.
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Re:
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Then again, it is easy to figure out.
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Not all of us are cowards actually
“[e]veryone agrees that the Government’s interest in combating terrorism is an urgent objective of the highest order.”
If I believed for a second that terrorism was actually a serious or even modest threat perhaps this argument might hold more weight, but given people die of non-terrorism causes at vastly larger numbers, such that pretty much anything is more likely to kill you than a terrorist, saying that 'combating terrorism is an urgent objective' falls flat.
It's a threat, but it doesn't even come remotely close to a 'all rights are to be suspended to combat it'-level threat.
“It is ‘obvious and unarguable’ that no governmental interest is more compelling than the security of the Nation.”
Likewise not true. Once again if they were limiting the uses of NSL's to only the most extreme cases where they was a real and significant potential for harm then they might have a valid argument in saying that they have the highest priority, but with the ever widening use of them to argue that they're being used for 'the security of the nation' makes about as much sense as saying busting someone jaywalking is a matter of 'the security of the nation'.
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Re: Not all of us are cowards actually
So to make you more interested in letting government have more power like this, they just need to "slip up" and let more citizens die or suffer by terrorism.
Duly
Noted...
Where have I see this logic before? Oh yea, pro-regulation attitudes in general. The government has not only has noticed that punishing you is the fastest way to get you to give it more power, it is one of the oldest tricks in the book.
They talk a good game, then turn around and use it against you every time you say yes, please take my liberty so that I might be protected!
There is a sucker born every minute!
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Re: Re: Not all of us are cowards actually
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Re: Re: Not all of us are cowards actually
They already have slipped up, no universal health care is one such area. However, taking the OP's original comment out of context, has left you open. He clearly states that he doesn't believe it is any threat, since even with a "slip up" the numbers that die will still be minute compared to everything else that does kill you. Secondly, he uses the word "might" which does not mean that it will hold more weight.
Thirdly, any "slip up" would be a deliberate act, irrespective of any government argument to contrary, of the government to participate in that terrorist act.
One must remember that fear is the driving force behind all government policy and has been so for decades. Fear leads people to be bullies and being a bully leads one to being a terrorist.
Just as there are few politicians in my country who are willing to stand up as strong, righteous, fearless leaders who lead a fearless people in their daily lives, there are few fearless men and women in your parliaments (Congress and State Legislatures) who stand against the tide of fear running rampant through all of your government organisations right down to the local fuzzy wuzzies.
Jimmy Carter may have been your last president that was not a man of fear. We might possibly include the next one, the actor. But the rest have been men of fear, all cowards and all bullies. What you have today is the legacy you have received from each of them.
There is a narrow path that leads to freedom and fearlessness but it is difficult compared to the path of fear, which wide and easy to travel and most take this wide easy path. There is only One who takes away fear and He is considered anathema by the world.
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Prior Restraint
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Security of the Nation
Um, what? Don't the constitution and bill of rights mostly talk about the rights of the people—and basically their security from their own government?
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Publicly Make a Statement
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Revoke Your Consent to be Governed by a Clearly Corrupt Government
Appeals Court Agrees Government Can Tell NSL Recipients To STFU Indefinitely
Welcome to the United States of Tyranny where the government/courts apply the law arbitrarily.
How can the federal court jesters comprising the US Court of Appeals for the Ninth Circus render such a clearly defective decision that is in direct contravention to the plain English meaning of the Constitutions First Amendment?
The federal court jesters of the Ninth Circus have clearly abdicated the authority granted to them via the governed when they decided to jettison the Constitution in favor of foisting forth tyranny (eg arbitrary application of the law) upon the nation as a form of good governance while remaking the law to suit the governments needs (ie expediency) at the expense of all citizens.
Rendering the Constitution null-void via judicial fiat for the convenience of the government is malfeasance of the highest order and grounds for immediate impeachment.
Perhaps the time has come for the Constitution shredding tax feeders (ie courts, politicans, etal) to fund their authoritarian fiefdoms with the proceeds of bake sales in lieu of taxation.
How many citizens are willing to eat cake in place of casting off the repressive yoke of a criminally corrupt government?
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Of course they will always make the self-referential arguments, and those about other "investigative techniques", as if these themselves cover the "national security" aspect.
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Civil disobediance
I've no idea, but I probably wouldn't, no matter what the government says, because I consider the very idea so outlandish fascist, undemocratic, and unconstitutional as can be, so I would actually consider it my absolute DUTY to reveal whatever I was told under any gag order.
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Especially if they ransom it to the government for significant sums of moulah. How often is the government going to pay up over such matters. Douglas Adams had the write idea about this.
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So don't disclose that you got the NSL. Just disclose that, for unspecified reasons, all content about the user(s) is now being CC'd to the government. Gag order is technically obeyed: you didn't tell anyone the NSL exists or that you got it. You only disclosed the fact that you're giving the government data they can't get on their own. Maybe you didn't do it because of an NSL; maybe you're just doing it because you like drowning the government in haystacks, and you know they have an insatiable thirst for more hay.
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Congress shall make no law...
I guess we may find out how much of a textualist the new Justice Gorsuch really is.
The late Justice Black was well-known for believing that no law means no law. From his concurrence in New York Times v United States (1971):
(Bracketed insertion and ellipses in source.)
The new Justice Gorsuch's surface commitment to “textualism” has been much bruited about in recent months. We may seen whether or not that “textualist” commitment runs deeper.
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Character sorely missed in modern times
Justice Hugo Black's opinion on that case is excellent, and shows a mindset that more judges these days could dearly do with.
Of particular note this part struck me:
'[W]e are asked to hold that ... the Executive Branch, the Congress, and the Judiciary can make laws ... abridging freedom of the press in the name of 'national security.' ... To find that the President has 'inherent power' to halt the publication of news ... would wipe out the First Amendment and destroy the fundamental liberty and security of the very people the Government hopes to make 'secure.' ... The word 'security' is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security'
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Re: Character sorely missed in modern times
All of the justices who decided Seattle Times v Rhinehart back in 1984 have now retired or passed away.
Of the nine justices who unanimously decided Butterworth v Smith back in 1990, only Justice Kennedy remains active on the court.
Butterworth involved a witness before a grand jury, and that institution —with its long tradition of secret proceedings— is guaranteed by no less authority than the 5th Amendment.
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Oh darn, we were hacked. Those pesky Russians sure are annoying
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The First Amendment issues are clear, but at the same time the compelling interest of the state also comes into play. NSLs are not someone checking up on your Ex that didn't pay alimony, it's matters that are much further up the scale, national security really is a trump card on almost everything.
One thing that is clear: Nobody has made a compelling argument FOR disclosing the letters, outside of the intense need to suck up to the 1st amendment at every turn.
This thing will almost certainly trundle it's way to SCOTUS at some point. But with the Cheetoh getting to appoint a couple of ultra conservative wing nuts to the bench, it's very unlikely that the left liberal free speech arguments will hold much water. The law and order conservatives will have the day.
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Re:
NSLs are not someone checking up on your Ex that didn't pay alimony, it's matters that are much further up the scale, national security really is a trump card on almost everything.
Going to go with a [Citation Needed] on that one, because as a not-so-old article displayed the FBI at least seems to use them to grab pretty much everything, and with no-one needed to vet them beforehand, with an older article suggesting that NSL's are used at least in part to bypass any pesky courts or 'courts'(FISA in that case) that tell them 'no'.
Digging through the archive I ran across an article from 2013 that mentions '14,212 Americans whose information DOJ reported obtaining via NSL' in 2010. You really think that there was over fourteen-thousand americans that posed serious threats to national security that year?
One thing that is clear: Nobody has made a compelling argument FOR disclosing the letters, outside of the intense need to suck up to the 1st amendment at every turn.
You mean beyond the fact that the government seems to abuse them to bypass the courts by issuing demands and silencing those on the receiving end? Beyond the idea that companies or individuals should be compelled to hand over potentially massive amounts of information and then prohibited, possibly forever from being able to disclose this is a rather large problem? Beyond making sure that the government isn't blatantly abusing their power in order to do the above?
Those not 'compelling' enough arguments for you?
Also, 'suck up to the 1st amendment at every turn'? As though fighting back against the idea of secret orders with indefinite gag-orders is something bad? Seriously?
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Re: Re:
Well, it's actually not too difficult. Assume that the average facebook user has about 40 friends. Let's say that in 2010 they investigated 300 people. Since you are likely to check each of the "friends" as well, you quickly end up with 12000 people getting checked out.
Part of the problem of an NSL is that because of their nature, we don't really know how deep they go. The Techdirt opinion pieces you link to (rather than linking to the full story) are full of maybe and possibilities, but few proven facts.
See, if you went deeper, you would see that the 14000 number is the number of requests, but they only touched about 6000 people. So they are making multiple requests (say ISP and facebook or twitter) for the same person to get full data. With friends lists and overlaps, it's quite possibly that only a small number of investigations ends up touching a fairly large number of people. We don't know (and that I agree is a bit of a problem).
"Also, 'suck up to the 1st amendment at every turn'? As though fighting back against the idea of secret orders with indefinite gag-orders is something bad? Seriously?"
No, it's not bad, but without considering what might be the compelling reasons, it's just knee jerk anti-government stuff. As I said, it's not hard to imagine them investigating one or two militant groups in the US, touching a couple of hundred direct people and then their friends, looking for emails, messages, or connections that might be a security risk.
I agree that there is a need to know, I am just not convinced that the need to know exceeds the need for discretion in an ongoing investigation.
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Re: Re: Re:
Statute permitted, and the government routinely exercised, indefinite gags, without any showing even in camera that the investigation still required secrecy. Further, the government fought strenuously to suppress not only the release of the individual National Security Letters, but even to suppress meaningful statistical analysis. That suggests either (a) someone high up is very incompetent or (b) that someone high up is very afraid of what disclosure of summary statistics will do to public support. As popular as it is to lean on governmental incompetence, I think (b) is more likely.
There is plenty of public evidence that National Security Letters are abused. The government has had plenty of opportunities to demonstrate that the abuses are outliers. It has not taken those opportunities. That suggests the abuses likely are not outliers, because there is a compelling government interest in maintaining widespread public support for this law, so it would be foolish for the government not to use all publicly releasable information it possesses to support the law. If public support drops low enough, there might be meaningful reform. Depending on circumstances at the time, that reform might reduce National Security Letter usefulness (or ban them entirely), so investigators should be motivated to prevent that. The best way to prevent that is to demonstrate to the public that abuses are rare and, where intentional, have led to meaningful reprimands for the abusers.
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Re: Re: Re:
It's easy to imagine them doing it, sure. But that scenario runs into multiple Fourth Amendment problems. You don't just get to look for everything - according to the text of the amendment, to get a warrant you must have "probable cause", and you must "particularly describ[e] the place to be searched, and the persons or things to be seized." The fact that NSL's purport to demand information without actually being warrants just makes things worse.
I question the value of an investigation that is still ongoing 6 years later. Are you telling me that there are terrorists in this country that the government has known about for 6 years (or more - they presumably were already investigating before demanding these records) and they haven't arrested any of them yet (at which point they'd know there was an investigation anyway and secrecy would be moot)? How is THAT keeping us safe?
If they have, for example, discovered a terrorist conspiracy to explode a bomb, they can pretty much arrest everyone as soon as they do even one thing to further the conspiracy, and the maximum sentence is life in prison. If you're telling me that after years and years nobody has done anything to further the conspiracy, I question whether they ever will.
If it were up to me, there'd be a hard limit of 4 years for compelled nondisclosure. One presidential election cycle about all I can tolerate - if someone is abusing their power, I don't want it to go on any longer than that before it can come to light.
Defending an indefinite gag order without knowing the compelling reason is knee-jerk PRO-government. Considering this is the same government that compelled the phone companies to turn over literally all their records on everyone, on an ongoing basis and put a gag order on that, I don't feel like I need them to give them the benefit of the doubt.
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Certain tests [was Re: Re: Re: Re: ]
Part of the statute at issue, 18 U.S.C. § 2709, in providing for the gag order, sets out:
Now from Judge Ikuta's opinon for the Ninth Circuit (p.40 in PDF):
(Emphasis added.)
A high official certifying “reason to believe” might be somewhat analogous to the Fourth Amendment's probable cause standard.
But in the First Amendment context, probable cause has never been the test for suppressing otherwise protected speech.
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Re:
Funny - they do not seem to care much about following the law themselves, rather that is for everyone else and not them.
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Law 'n' order [was Re: ]
Justices Kennedy, Thomas, and Alito were among the dissenters in the recent case of Williams Yulee v Florida Bar (2015).
In that case, the late Justice Scalia's dissent set out the proposition:
Do you count Justices Kennedy, Thomas, and Alito among the soi-disant “law and order conservatives” ?
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Opinion below
United States District Court (N.D.Cal.) Judge Susan Illston's March 29, 2016 Order In Re: National Security Letters (case nos. 3:11-cv-02173-SI, 3:11-cv-2667-SI, 3:13-mc-80089-SI, 3:13-cv-01165-SI — note only three out of these four cases were subject to the 9th Circuit's decision.)
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Re: Opinion below
To clarify— The Ninth Circuit's opinion is headed with “D.C. No.” and three of these four case numbers.
From the procedural history recounted on p.3 of Judge Illston's March 29, 2016 order:
(Highlighting added.)
D.C. Case No. 3:11-cv-2667 SI does not appear on the Ninth Circuit's July 17, 2017 opinion.
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Reasonable likelihood [was Re: Opinion below]
From p.2 of Judge Susan Illston's March 29, 2016 Order In Re: National Security Letters—
(Emphasis added.)
18 U.S.C. § 3511(b)(3)
Does Judge Illston's finding of a “reasonable likelihood” meet the statutory standard “reason to believe” ?
If Judge Illston's finding meets the statutory standard, then does a “reasonable likelihood” cross a constitutional threshold for the suppression of otherwise protected speech?
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Ninth Circuit Briefing
Briefing before the Ninth Circuit in case nos. 16-16067, 16-16081, and 16-16082 —
(PDFs courtesy EFF.)
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How can NSL gag orders last forever when classification doesn't ?
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