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.

Filed Under: 9th circuit, first amendment, free speech, gag orders, national security, national security letters, nsl, nsls
Companies: cloudflare, credo mobile, eff

Just Prior To Hearing Over NSL Gag Orders, Court Allows Cloudflare & CREDO Mobile To Be Named As Plaintiffs

from the about-time dept

In December, we wrote about how (thanks to EFF's lawyering) mobile phone provider CREDO Mobile was finally (after many years) allowed to reveal the National Security Letter (NSL) it had received from the DOJ back in 2013. As per usual, the NSL had a complete gag order, barring the company from admitting it had received such a letter. Then, just about a month later, Cloudflare was similarly ungagged over an NSL it had received in 2013 as well.

On Wednesday, EFF will be back in the 9th Circuit appeals court arguing that these NSLs are First Amendment violations, but for the first time, it can actually name those two companies as its clients. Even though those NSLs were finally allowed to become public in the last few months, the case itself still did not include their names, until Monday, when the court was told by the DOJ, that since the FBI had concluded the various investigations, and because it had enabled each of the companies to reveal those specific NSLs they had received, that it no longer required the plaintiffs' names in the case to be sealed. Of course, we don't know how many other NSLs are still gagged (possibly even with these two companies). Indeed, the EFF's announcement certainly hints at more:

On Wednesday, EFF Staff Attorney Andrew Crocker will tell the United States Court of Appeals for the Ninth Circuit that these gags are unconstitutional restrictions on CREDO and Cloudflare’s free speech and that the FBI’s belated decision to lift some of the gags only underscores why judicial oversight is needed in every case. The gag orders barred these companies from participating in discussion and debate about government use of NSLs—even as Congress was debating changes to the NSL statute in 2015.

Hopefully, the appeals court recognizes the serious First Amendment issues at play here.

Filed Under: doj, fbi, first amendment, free speech, gag order, national security letters, nsl, nsls
Companies: cloudflare, credo mobile, eff

More National Security Letters Made Public After Government Drops Its Attempt To Keep Its Gag Orders In Place

from the most-transparent-administration-still-all-about-forced-transparency dept

Thanks to the EFF's efforts, another set of National Security Letters have been published and their recipient freed to discuss them. CREDO Mobile received two NSLs in 2013 -- both accompanied with the usual indefinite gag order. The NSLs [PDF 1] [PDF 2] requested a wealth of data on three of CREDO's customers -- including all call records, financial information (credit cards used, etc.), and personal information (name, address, etc.) -- dating back to April 2008.

CREDO challenged the constitutionality of the indefinite gag orders as well as the constitutionality of the NSLs themselves.

“A founding principle of CREDO is to fight for progressive causes we believe in, and we believe that NSLs are unconstitutional. These letters, and the gag orders that came with them, infringed our free speech rights, blocking us from talking to our members about them or discussing our experience while lawmakers debated NSL reform,” said Ray Morris, CREDO CEO. “We were proud to fight these NSLs all these years, and now we are proud to publish the letters and take full part in the ensuing debate.”

CREDO's challenge to the gag order was upheld [PDF] by a federal judge in March, who struck it down when the FBI failed to show a need for the continued secrecy. This decision was held pending the FBI's appeal, but the government apparently decided this wasn't a battle it wanted to fight and dropped its appeal of the court's order.

The government's decision to drop the appeal highlights one of the (many) problems with NSLs. These are self-issued administrative orders subject to very little, if any, oversight. The FBI can issue as many of these as it wants without ever having to get a judge involved. Every one of these arrives with an indefinite gag order attached, forcing recipients to lawyer up if they want to challenge the government's demands for secrecy.

The government clearly felt it couldn't demonstrate why this gag order should still be in place. But the government doesn't have to justify its demands for secrecy at the point the NSL is issued. It only needs to do this if challenged in court. While some judges have expressed an interest in periodic reviews of NSLs to determine the need for ongoing secrecy, these conclusions are the exception rather than the rule.

That judges are the ones making this determination is another part of the problem. In response to the USA Freedom Act, the DOJ instituted a policy requiring a "periodic" review of issued NSLs. Unfortunately, that's all it does. There's no definition attached to "periodic," which means the review could happen every few years… or never.

The constitutionality of the orders themselves should still be actively challenged. While much of what is sought with these falls under the very generous definition of "third party records," the lack of any oversight or judicial review makes these the go-to tool for the FBI -- which has been known to issue NSLs when its warrant requests are turned down by federal courts. Throw an indefinite gag order on it, and the FBI can pretty much ensure complete compliance from recipients, whose only option is to fight an often-futile legal battle against the government.

Filed Under: doj, fbi, first amendment, gag order, nsl
Companies: credo mobile, eff

ALEC Threatens To Sue Critics That Point Out It Helps Keep Broadband Uncompetitive

from the sloppy-denial dept

As you might have read, the American Legislative Exchange Council (ALEC) has been losing some major clients lately, including Google, T-Mobile and Microsoft. Those companies have been quietly distancing themselves from ALEC, after critics have illustrated its ties to legislative assaults on climate change science and meaningful pollution standards. Before Google announced it was leaving the group last fall, chairman Eric Schmidt went so far as to accuse the legislative grist mill of "literally lying" about its role in climate change denial. In a response letter to Google, ALEC proclaimed Google's departure was "based on misinformation from climate activists who intentionally confuse free market policy perspectives for climate change denial."

With T-Mobile, AOL, and Facebook quietly following in Google's footsteps (but not publicizing the reason for their departures), ALEC has apparently decided that its best course of action is to threaten lawsuits against those claiming ALEC denies climate change. ALEC has sent cease and desist letters (pdf) to a number of critics like Common Cause, the letters directing groups to the ALEC website where the organization insists it's not a opposed to climate change -- it's simply a "market environmentalist" dedicated to the "betterment of human health and well-being."

Apparently climate change isn't the only sensitive topic for ALEC as the outfit tries to stem the flow of client departures. The group has also been sending cease and desist letters to companies like wirelesss MVNO Credo Mobile, which in recent months has been sending its subscribers missives hammering ALEC for its role in fighting community broadband. The small company markets itself as having an activist, pro-consumer edge, and has scored exceptionally well on the EFF's privacy report card.

Credo's been busy pointing out to its subscribers how ALEC's model legislation, clearly visible on ALEC's website, has been used as the framework for roughly twenty state-level protectionist broadband bills nationwide. As we've frequently discussed, these bills are the worst sort of protectionist dreck, shoveled into the legislative bloodstream by the likes of AT&T, Comcast, Time Warner Cable and CenturyLink to protect its duopoly power from communities desperate for something better. Credo frames ALEC's participation in these efforts this way in a recent notice to subscribers:

"The American Legislative Exchange Council—a shadowy corporate front group that works to enact discriminatory voter ID laws, weaken gun safety laws and eliminate environmental regulations—is now pressuring state legislatures around the country to ban cities from offering broadband Internet access. ALEC is pushing its anti-municipal broadband agenda through model legislation it has developed, which one municipal broadband advocate described as “the kind of language one would expect to see if the goal is to protect politically powerful cable and telephone company monopolies.” Many perennial funders and members of ALEC, including AT&T, Verizon, Comcast and Time Warner [Cable], stand to gain financially from these state laws because they eliminate the possibility of competition from city-run broadband services."

In its cease and desist letter to Credo, ALEC first proclaims it's a respected think tank, not a lobbying apparatus. It also insists it doesn't "block" municipal broadband, the group simply advocates encumbering towns and cities with "certain steps," should they be interested in building their own broadband:

"We demand that you cease making inaccurate statements regarding ALEC, and immediately remove all false or misleading material from the Working Assets and Credo Action or related websites and action pages within five business days," the letter, dated March 5, reads. "Should you not do so, and/or continue to publish any defamatory statements, we will consider any and all necessary legal action to protect ALEC."

ALEC contends that it does not oppose city broadband but only advocates that certain "steps" be required before a municipality can provide telecom services. Additionally, ALEC takes issue with Credo labeling it as an organization that lobbies state legislatures at all, arguing that it is merely a "think-tank for state-based public policy issues and potential solutions."

How exactly can you claim you don't oppose municipal broadband when you've played a starring role in opposing municipal broadband? Because many of the bills ALEC helps pass don't technically "block" municipal broadband. They are however usually saddled with language by ISP lawyers that effectively does the same thing. For example most of the bills prohibit communities from getting into the broadband business if their market is "served" by an existing provider. They then go on to define "served" to include satellite and cellular connections, while using extremely generous versions of zip code coverage analysis. Similarly ALEC doesn't lobby to pass these bills directly, their incumbent ISPs client do that.

Regardless, Credo Mobile doesn't appear to be too worried about ALEC's threat, sending the organization a response letter (pdf) illustrating that not only does ALEC's own website document its opposition to municipal broadband, but so have numerous news outlets:

"Not only does ALEC attempt to influence legislative outcomes, it clearly succeeds in doing so. As recounted in a 2011 Bloomberg News article, ALEC's model legislation on municipal broadband was the principal reason why cable companies were able to block Lafayette, Louisiana from offering high speed Internet access to its citizens (editor's note: Lafayette was ultimately able to offer gigabit connections via LUS Fiber, but only after a protracted legal fight against regional incumbents Cox and BellSouth (now AT&T)).

"Under these circumstances, the language used in the statements you challenge -- "working to make sure it never happens" and "pressuring state legislatures" -- is well within the bounds of political discourse in making the point that ALEC's model legislation and positions have the intent and effect of encouraging enactment of state legislation effectively banning cities from offering broadband Internet access."

It's not entirely clear what ALEC hopes to accomplish here, as its role in both climate change and municipal broadband is pretty clearly established by documentable history, news reports, and the legislative process itself. It's kind of like the town drunk, after months of being videotaped punching clowns in the face, becoming foul-mouthed and indignant at the mere mention of the odd number of clown black eyes around town. In fact the behavior is only bringing additional critical attention to ALEC's longstanding role as an organization that's useful to corporations looking to quietly shovel bad legislation through financially compromised state legislatures with the bare minimum of fuss or actual public debate.

Filed Under: defamation, free speech, lobbying, municiple broadband, slapp, threats
Companies: alec, common cause, credo mobile