Senators Wyden And Heinrich Speak Out Against Expanding FBI's Ability To Warrantlessly Spy On Your Communications

from the don't-allow-it dept

We've been writing for a while now how the FBI has been trying to rewrite a key part of the PATRIOT Act to massively expand its ability to use National Security Letters (NSLs) to get email and browser information with no warrant and no oversight. Despite the fact that the FBI was asking for this just days before the Orlando shooting, right after it, a bunch of Senators, led by John McCain, used the opportunity to fast track that legislative change, cynically pointing to the Orlando shooting as a reason why it's needed (despite it having nothing whatsoever to do with that). That effort failed, but just barely -- and it's expected to be brought up again shortly for another vote.

Senators Ron Wyden and Martin Heinrich are trying to convince people that this is a bad, bad idea. They've written a short but compelling article on how this is a massive abuse of privacy, and why the FBI absolutely does not need this power.

Given what web browsing history can reveal, there is little information that could be more intimate. If you know that a person is visiting the website of a mental health professional, or a substance-abuse support group, or a particular political organization, or a particular dating site, you know a tremendous amount of private and personal information about him or her. That’s what you get when you can get access to their web browsing history without a court order.



They note that there are real threats, but this change in the law won't help to stop those threats. Indeed, the FBI already has the ability to get this information -- it just needs to submit to a tiny bit of oversight:

But the FBI already has at least two separate ways they can quickly obtain these electronic records with court oversight.
 
First, under the Patriot Act’s section 215, the FBI can get a court order from the Foreign Intelligence Surveillance Court to obtain a suspect’s electronic records. The president’s surveillance review group, which included former top intelligence officials, said this kind of court oversight should be required for this kind of information.
 
Second, in emergency situations where the FBI believes it needs to move immediately, it already has the authority to get these records first, and then settle up with the court afterward. This authority comes from section 102 of the USA FREEDOM Act, which is based on language Sen. Wyden authored and we both strongly supported.
 


This effort to expand the FBI's surveillance powers should be a non-starter and it's depressing that so many Senators are willing to grant the FBI near total freedom to spy on our electronic records without a warrant. Given the FBI's history of abusing its surveillance powers, sometimes for political gain, shouldn't Congress be restricting such powers, rather than expanding them?

Stay tuned, later today, on the Techdirt Podcast, we'll have Senator Wyden discussing why this is so problematic.

Filed Under: fbi, martin heinrich, national security letters, nsls, ron wyden, surveillance

Leak Reveals Secret FBI Guidelines That Basically Give Them Free Rein To Spy On Journalists And Sources

from the not-cool,-doj dept

Eleven months ago, we wrote about a lawsuit filed by the Freedom of the Press Foundation seeking to get a copy of the DOJ's infamous new rules for spying on journalists. The new rules came about after it had come out that the DOJ had spied on Associated Press reporters as well as lied to a court to claim that Fox News reporter James Rosen was a co-conspirator in a leak investigation. To date, the DOJ has steadfastly refused to reveal the rules.

Thankfully, someone has now leaked the rules, or at least the 2013 version of some of the rules, which show that, contrary to what then Attorney General Eric Holder had suggested, it's still ridiculously easy for the FBI to spy on reporters and their sources in trying to hunt down a leak. In fact, it appears that these rules, around the use of NSLs are actually separate from the rules that Holder was talking about -- meaning that there's an entirely separate path for the DOJ to spy on journalists. The rules show that the FBI can just issue a National Security Letter (NSL), the mechanism that the FBI has been known to regularly abuse without consequence and which it's trying to expand. The "process" by which the media is supposedly protected under these new rules is that if someone in the DOJ is seeking an NSL to get phone records of someone in the media, they need to get some permission from someone else in the DOJ first: This is the fox watching the henhouse. These are not restrictions, these are just the DOJ getting to ask itself if it really wants to spy on these journalists, and the DOJ telling itself "sure, go ahead." There's a further exception that if someone is a member of the media, but the FBI "suspects" they're an intelligence officer or affiliated with a foreign intelligence service, "no additional approval requirements" are needed. So, as with the Rosen case, the FBI can just declare him a "co-conspirator" and voila, no approval necessary.

As the Freedom of the Press Foundation explains in response to this leak, this completely undermines the claims by the DOJ that there were strict controls on spying on journalists:

First, the rules clearly indicate—in two separate places—that NSLs can specifically be used to conduct surveillance on reporters and sources in leak investigations. This is quite disturbing, since the Justice Department spent two years trying to convince the public that it updated its “Media Guidelines” to create a very high and restrictive bar for when and how they could spy on journalists using regular subpoenas and court orders. These leaked rules prove that the FBI and DOJ can completely circumvent the Media Guidelines and just use an NSL in total secrecy.

Second, the DOJ told the New York Times in 2013 that, despite NSLs being exempt from the media guidelines, they were still used under a “strict legal regime.” Well, the “strict legal regime” here is basically non-existent. The only extra step the FBI has to go through to spy on journalists with an NSL—besides the normal, lax NSL procedures, which they have flagrantly and repeatedly violated over the past decade—is essentially get the sign off of a superior in the Justice Department. That’s it! They don’t have to even go through the motions for following any of the several rules laid out in the DOJ media guidelines: like get the Attorney General to sign off, exhaust all other means of investigation, alerting and negotiating with the affected media organization, making sure what is being sought is essential to the investigation, etc.

There's a separate important question here too: why were these rules kept secret? There is no national security reason to keep this secret. It does not reveal anything that helps anyone avoid surveillance. As Freedom of the Press Foundation notes, it appears the only reason to keep this secret is to avoid the embarrassment.

The information that has been redacted here by the Justice Department – and which they are fighting to keep secret in court – is incredibly mundane. The fact that the FBI has to get another person in the bureaucracy to sign off on a particular investigation should not be a state secret, nor would it remotely harm any ongoing investigation, nor would “tip off” any alleged criminals to how to evade surveillance.

The only reason to keep these rules secret, it seems, is that it’s incredibly embarrassing for the FBI to admit that they can use NSLs in leak cases to go after journalists. The fact that the FBI and DOJ are keeping these rules is outrageous, and they should use this opportunity to officially release the rules—and any updates to them—immediately.

The Foundation is also planning to continue its lawsuit for two reasons. First, as mentioned in the quote above, it wants the DOJ to officially release the rules, and, more importantly, it believes that the rules may have been updated since these 2013 rules were published.

The whole thing, once again, shows just how ridiculous this administration has been concerning protecting the rights of journalists to talk to confidential sources. "The most transparent administration in history" once again seems to be the exact opposite. Undermining the freedom of the press and spying on reporters and their sources is shameful. It's the activity of tyrants and insecure dictators, not democratically elected governments.

Filed Under: doj, fbi, journalists, national security letters, nsls, oversight, surveillance
Companies: freedom of the press foundation

Senator Wyden Puts A Hold On Intelligence Authorization Bill To Block FBI Warrantless Surveillance

from the there-goes-that-wyden-guy-again dept

As we've discussed, some surveillance/law enforcement hawks have tried to rush through a law to expand the power of national security letters (NSLs) to paper over the long standing abuse of NSLs, by saying that they can use those documents (which have basically no oversight and don't require a warrant) to collect a ton of private info, including email info and web browsing histories. The rushed vote on this -- stupidly citing the Orlando attacks, despite the fact it would have done nothing to stop that -- failed but just barely. Basically, if Senator Dianne Feinstein were able to attend the vote, it likely would have passed. The support for it was one vote shy, and then Sen. Mitch McConnell changed his vote for procedural reasons to be able to bring it back for a quick follow up vote.

Now, as Congress rushes towards that vote, Senator Ron Wyden stepped up today to use his power as a Senator to put a hold on the entire Intelligence Authorization bill. He gave a short floor speech explaining his reasons.

I certainly appreciate the FBI’s interest in obtaining records about potential suspects quickly. But Foreign Intelligence Surveillance Court judges are very capable of reviewing and approving requests for court orders in a timely fashion. And section 102 of the recently-passed USA FREEDOM Act gives the FBI new authority to obtain records immediately in emergency situations, and then seek court review after the fact. I strongly supported the passage of that provision, which I first proposed in 2013. By contrast, I do not believe it is appropriate to give the government broad new surveillance authorities just because FBI officials do not like doing paperwork. If the FBI’s own process for requesting court orders is too slow, then the appropriate solution is bureaucratic reforms, not a major expansion of government surveillance authorities.

The fact of the matter is that ‘electronic communication transaction records’ can reveal a great deal of personal information about individual Americans. If government officials know that an individual routinely emails a mental health professional, or sends texts to a substance abuse support group, or visits a particular dating website, or the website of a particular political group, then the government knows a lot about that individual. Our Founding Fathers rightly argued that such intrusive searches should be approved by independent judges.

It is worth noting that President George W. Bush’s administration reached the same conclusion. In November 2008, the Justice Department’s Office of Legal Counsel advised the FBI that National Security Letters could only be used to obtain certain types of records, and this list did not include electronic communication transaction records. The FBI has unfortunately not adhered to this guidance, and has at times continued to issue National Security Letters for electronic communications records. A number of companies that have received these overly broad National Security Letters have rightly challenged them as improper. Broadening the National Security Letter law to include electronic communication transaction records would be a significant expansion of the FBI’s statutory authority.

And unfortunately, the FBI’s track record with its existing National Security Letter authorities includes a substantial amount of abuse and misuse. These problems have been extensively documented in reports by the Justice Department Inspector General from 2007, 2008, 2010 and 2014. As one of these reports noted, “the FBI [has] used NSLs in violation of applicable statutes, Attorney General guidelines, and internal FBI policies.” No one in the Senate should be surprised by this pattern of abuse and misuse, because this is unfortunately what happens when federal agencies are given broad surveillance powers with no judicial oversight. In my judgment, it would be reckless to expand this particular surveillance authority when the FBI has so frequently failed to use its existing authorities responsibly.

Of course, to some extent, this is little more than show. It's pretty clear that McConnell has the votes to get this passed, which is why Wyden has now taken the dramatic step of putting a hold on the bill. But the 60 votes here are usually what is necessary to break a hold (which remains a widely used, but informal, Senate rule). So in the end this won't mean much, but we've been here before again and again and again. And by now it should be clear: When Ron Wyden says that the government is abusing laws to spy on Americans, he's not lying. We shouldn't then paper over that abuse and give the FBI or the NSA or anyone else greater powers to spy on Americans. Because they use that power and they don't tend to use it wisely and judiciously.

Can anyone explain, seriously, why the emergency powers that allow the FBI to do the search in an emergency and then get the warrant after are somehow too problematic? Or why the FBI can't go and get a warrant at all? It's a petty quick process for them these days. This whole effort seems designed solely to wipe out what little oversight there is of the FBI and its use of national security letters.

Filed Under: 4th amendment, hold, intelligence authorization, mitch mcconnell, national security letters, nsls, ron wyden, warrants

Senate Just Barely Rejects Plan To Expand FBI Surveillance Powers

from the two-votes dept

Just yesterday we wrote about how the Senate was, somewhat ridiculously, rapidly pushing forward plans on a vote for an amendment to the laws concerning what information the FBI can gather using National Security Letters (NSLs). Despite the fact that the big push for this bill began a few weeks ago, and the fact that it had absolutely nothing whatsoever to do with the Orlando shooting, cynical Senators including John McCain and Mitch McConnell pointed to the shootings in Orlando as a reason that this expansion of FBI surveillance powers was needed. Of course, the reality is that it wasn't needed, and the law is really there to paper over the fact that the FBI has already been widely abusing its NSL powers to get information it's not allowed to request.

After a vocal debate this morning, the measure (somewhat surprisingly) failed to pass, but by just two votes. It need 60 votes to move forward (it was a vote for "cloture" on debate, which requires 60 votes), and it only received 58. But McConnell already made it clear that the amendment will be reconsidered soon, which means he's likely going to be pushing strongly to get those two remaining votes.

In other words, this particular debate is far from over, and thus it's important to make sure your Senator knows not to support this. You can see the roll call on the votes here to see what your Senators voted. Somewhat surprisingly, neither of my Senators in California voted for it. Feinstein didn't vote or wasn't present and Boxer voted against. I'm guessing that Feinstein would likely vote for it in a revote, given her willingness to support greater surveillance, so it's possible that McConnell really only needs one more vote, unless people can convince some of the "Yea" voters to change their mind.

Filed Under: 4th amendment, doj, fbi, john mccain, mitch mcconnell, national security letters, nsls, politics, warrants

Seeing Opportunity, Congress Tries To Rush Through Its Plan To Legalize FBI Abuses Citing 'Orlando!'

from the let-no-crisis-go-unwasted dept

Just a few weeks ago, we wrote about the FBI pushing strongly for an update to the law that covers National Security Letters (NSLs) to cover up the fact that the FBI has been using them to get electronic communications records. The current law on NSLs doesn't cover that information, though the FBI insists that it's just a "typo" in the law, and still frequently asks for them in its NSLs, because NSL recipients often don't know the law themselves and will still turn over the info. Of course, it helps that the NSLs often come with gag orders. Reports going back a decade have shown that the FBI has a serious problem with abusing its NSL powers to get lots of information it's not supposed to have. And rather than do something to stop such abuses, the FBI's friends in Congress have, instead, been trying to legalize such abusive practices to allow the FBI to do even more.

And, in the spirit of "leave no crisis unexploited," Senator Mitch McConnell is pushing forward on the amendment put forth by Senators McCain and Cornyn to expand NSLs. And, cynically, they're citing the Orlando shootings as the reason why, despite the fact that this amendment was being pushed for before the shootings even occurred and the fact that this would have done absolutely nothing to stop the shootings.

“In the wake of the tragic massacre in Orlando, it is important our law enforcement have the tools they need to conduct counterterrorism investigations,” Senator John McCain, an Arizona Republican and sponsor of the amendment, said in a statement.

The FBI and others in law enforcement already have plenty of tools to do counterterrorism investigations (and, again, it's not even clear that the Orlando shooting was a terrorist activity in the first place). Nothing in this amendment would change how the FBI was investigating the attack. This is just McCain, McConnell and others exploiting the shooting to help the FBI further abuse its surveillance powers.

Filed Under: john mccain, mitch mcconnell, national security letters, nsls

FBI Pushing For Legislation That Will Legalize Its National Security Letter Abuses

from the fighting-terrorism-means-never-having-to-say-you're-sorry dept

One of the more interesting things to sneak out around the edges of the FBI's redaction bars in Yahoo's document dump of National Security Letters was the sheer amount of information the agency was demanding. The FBI -- using letters it writes and approves with no outside oversight -- wants all of the following in exchange for a piece of paper backed by nothing but the FBI's "national security" claims.

In preparing your response to this National Security Letter, you should determine whether your company maintains the following types of information which may be considered by you to be an electronic communications transactional record in accordance with Title 18 United States Code § 2709.

Subscriber name and related subscriber information

Account number(s)

Date the account opened or closed

Physical and or postal addresses associated with the account

Subscriber day/evening telephone numbers

Screen names or other on-line names associated with the account

All billing and method of payment related to the account including alternative billed numbers or calling cards

All e-mail addresses associated with the account to include any and all of the above information for any secondary or additional e-mail addresses and or user names identified by you as belonging to the targeted account in this letter

Internet Protocol (IP) addresses assigned to this account and related e-mail accounts

Uniform Resource Locator (URL) assigned to the account

Plain old telephone{s) (POTS), ISDN circuit(s), Voice over internet protocol (VOIP), Cable modem service, Internet cable service, Digital Subscriber Line (DSL) asymmetrical/symmetrical relating to this account

The names of any and all upstream and providers facilitating this account's communications

This is odd because the FBI is not entitled to all of this information when using NSLs, as Gabe Rottman of CDT points out.

There are a few statutes that authorize the issuance of NSLs, but the most important—and the one with the greatest potential for abuse—is 18 U.S.C. § 2709, titled “Counterintelligence Access to Telephone Toll and Transactional Records.” As the name suggests, the authority was meant to be limited to phone records. It allows the FBI to issue NSLs to telecommunications companies to secure “the name, address, length of service, and local and long distance toll billing records of a person or entity” if the FBI certifies that they are relevant to a terrorism or espionage investigation. (The statute does mention the phrase “electronic communication transactional records,” but it still limits the types of covered records to name, address, length of service, and billing records–i.e., the equivalent of phone records.)

So, the FBI is asking for far more than it's allowed to get with an NSL. It's apparently hoping some NSL recipients won't know they're not required to turn over all of this information. Certainly, Yahoo knows, having battled the FBI (and the FISA court) over government demands for information. But the FBI issues thousands of these every year, and not every recipient is going to know what it does or doesn't have to turn over to the feds.

This perhaps explains the push to expand the FBI's NSL capabilities. Secret language in the Senate's secret intelligence bill looks to add email metadata and possibly browsing history to the list of records the FBI can acquire with NSLs. FBI Director James Comey has been stumping for this change, claiming the only thing standing between the FBI and records it always should have had access to in the first place is a typo.

On top of that, Sen. John Cornyn is attempting to "fix" the ECPA… by making even more of a mockery of the words behind the acronym: Electronic Communications Privacy Act. This is what Cornyn wants to give the FBI warrantless access to:

Name, physical address, email address, telephone number, instrument number, and other similar account identifying information.

Account number, login history, length of service (including start date), types of service, and means and sources of payment for service (including any card or bank account information).

Local and long distance toll billing records.

Internet Protocol (commonly known as ‘IP’) address or other network address, including any temporarily assigned IP or network address, communication addressing, routing, or transmission information, including any network address translation information (but excluding cell tower information), and session times and durations for an electronic communication.

As you can see, some of those records are already being requested by the FBI with NSLs, even though it has no legal basis to do so. It appears the FBI is pushing for codification of practices it already uses. That's the intelligence community way: it's better to ask for legislative fixes than permission. It's a forgiveness that pardons past behavior and permanently shields the agency from future legal challenges.

Filed Under: ecpa, ecpa reform, emails, fbi, national security letters, nsls

Yahoo First Company To Publicly Acknowledge It Has Received National Security Letters

from the doxing-the-feds dept

Given its history of battling gag orders from the government, there's some cosmic justice contained in the fact that Yahoo is the first company to publicly disclose the contents of National Security Letters it has received. Before the passage of the USA Freedom Act, NSLs came bundled with a presumptive lifetime ban on disclosure. This wasn't statutorily-required. It's just the way things worked out when the FBI was allowed to decide if and when it was going to allow NSL recipients to publicly discuss them.

The surveillance reform law requires the FBI to "periodically" assess its NSL nondisclosure demands, which appears to have led directly to the first publication of these letters by any company. Yahoo's accompanying statement notes it will continue to publicly disclose whatever it's allowed to in the future.

Yahoo has always maintained a strong commitment to protecting our users’ safety, security and privacy. The release of these documents and information regarding NSLs today is consistent with our commitment to sharing as much information as we legally can regarding government data requests. We believe there is value in making these documents available to the public to promote an informed discussion about the legal authorities available to law enforcement. They also demonstrate the importance of hard-fought reforms to surveillance law achieved with passage of the USA Freedom Act.

The letters [PDF] are redacted but some information had still managed to seep out between the black bars. For one, it appears the FBI asks for everything Yahoo could possibly have collected about targeted users, tracing all the way back to the creation of the accounts.

In preparing your response to this National Security Letter, you should determine whether your company maintains the following types of information which may be considered by you to be an electronic communications transactional record in accordance with Title 18 United States Code § 2709.

Subscriber name and related subscriber information

Account number(s)

Date the account opened or closed

Physical and or postal addresses associated with the account

Subscriber day/evening telephone numbers

Screen names or other on-line names associated with the account

All billing and method of payment related to the account including alternative billed numbers or calling cards

All e-mail addresses associated with the account to include any and all of the above information for any secondary or additional e-mail addresses and or user names identified by you as belonging to the targeted account in this letter

Internet Protocol (IP) addresses assigned to this account and related e-mail accounts

Uniform Resource Locator (URL) assigned to the account

Plain old telephone{s) (POTS), ISDN circuit(s), Voice over internet protocol (VOIP), Cable modem service, Internet cable service, Digital Subscriber Line (DSL) asymmetrical/symmetrical relating to this account

The names of any and all upstream and providers facilitating this account's communications

The above-listed information from "inception of the targeted account to the present" if this request cannot be processed as presently written

And, while the FBI requests this information to be sent to it in electronic form, it demands any challenges to its gag orders be handled via fax machines or snail mail.

This disclosure allows Yahoo to update its previous transparency reports with real numbers, rather than the fake numbers demanded by the government.

Prior to this, Yahoo hadn't even been allowed to disclose the fact that it had received NSLs, even under the very broad disclosure range of 1-499. This is a small step towards government transparency -- one that will hopefully continue to undermine its secrecy-by-default stance.

Filed Under: doj, fbi, national security letters, nsls, transparency
Companies: yahoo

Senate Intelligence Committee Expands FBI NSL Powers With Secret Amendment To Secret Intelligence Bill

from the you'll-find-out-about-the-additions-when-you're-told-you-can't-talk dept

The annual intelligence authorization is under way, with the Senate deciding how much money the nation's spy agencies will receive next year, along with anything else they can slip in while no one's looking. The entire discussion takes place behind closed doors, so there's very little stopping the Intelligence Committee's many surveillance fans from amending the bill to increase intelligence agencies' powers.

Fortunately, there's still one person on the inside who continues to perform his oversight duties.

A provision snuck into the still-secret text of the Senate’s annual intelligence authorization would give the FBI the ability to demand individuals’ email data and possibly web-surfing history from their service providers without a warrant and in complete secrecy.

If passed, the change would expand the reach of the FBI’s already highly controversial national security letters.

[...]

The spy bill passed the Senate Intelligence Committee on Tuesday, with the provision in it. The lone no vote came from Sen. Ron Wyden, D-Ore., who wrote in a statement that one of the bill’s provisions “would allow any FBI field office to demand email records without a court order, a major expansion of federal surveillance powers.”

Wyden did not disclose exactly what the provision would allow, but his spokesperson suggested it might go beyond email records to things like web-surfing histories and other information about online behavior. “Senator Wyden is concerned it could be read that way,” Keith Chu said.

The FBI's history of abusing NSLs is well-documented. These letters allow the agency to route around judicial oversight by chanting "national security" while composing their requests. (Bonus feature: recipients are forbidden from talking about them... indefinitely.) Increasing the FBI's access with no corresponding increase in oversight is definitely not a good idea, considering it has never shown interest in self-restraint.

The FBI historically has not had access to email records via NSLs, although it did spend several years doing exactly that before being shut down by the DOJ. It obviously wants that access again and FBI Director James Comey claims the only thing standing between it and the access it always thought it had is a "typo."

If this secret amendment passes along with the authorization bill, it would weaken attempts to reform the ECPA -- the 1986 law that gives the government warrantless access to emails and other online documents more than 180 days old. But rather than fix the Senate intelligence authorization bill, legislators are looking to carve a hole in the recently (and unanimously) passed Email Privacy Act.

Sen. John Cornyn, R-Texas, is expected to offer an amendment that would mirror the provision in the intelligence bill.

Privacy advocates warn that adding it to the broadly supported reform effort would backfire.

“If [the provision] is added to ECPA, it’ll kill the bill,” Gabe Rottman, deputy director of the Center for Democracy and Technology’s freedom, security, and technology project, wrote in an email to The Intercept. “If it passes independently, it’ll create a gaping loophole. Either way, it’s a big problem and a massive expansion of government surveillance authority.”

The FBI should be sending out fruit baskets to the Senate Intelligence Committee for both expanding its surveillance reach and undercutting a much-needed reform effort. Secret laws made by secretive committees during closed-doors sessions doesn't seem very "American," but much like the super-secretive NSLs the FBI loves so much, the routine invocation of "national security" tends to ward off the scrutiny this process desperately needs.

Filed Under: 4th amendment, appropriations, ecpa, ecpa reform, fbi, national security letters, nsls, senate intelligence committee, surveillance, warrants

Judge Tells Twitter Revealing Classified Stats Isn't Protected By 1st Amendment... But Says Twitter Can Challenge Classification

from the inching-forward dept

Back in late 2014, we wrote about Twitter suing the US government over whether or not it was allowed to publish just how many National Security Letters and FISA Court orders it receives in its transparency report. This came after a bunch of other tech companies had settled a similar lawsuit with an agreement that they could reveal certain "bands" of numbers, rather than the specific number. It still boggles the mind that merely revealing the number of NSLs and/or FISC orders received would create any problem for national security, but the government seems hellbent on keeping that information secret. Probably because they don't want the public to understand how widely this system is used to obtain info.

We had mentioned this case just a few weeks ago, noting that a bunch of companies had filed an amicus brief pointing out that it's unclear if they can even admit that they've never received such a request (i.e., it's possible that warrant canaries are illegal).

Meanwhile, the DOJ has been trying to get the entire case thrown out because that's what the DOJ does. Judge Yvonne Gonzalez Rogers has now given a mixed ruling denying some of the DOJ's motion, but granting a key part concerning Twitter's First Amendment claim. The good news, though, is that the issue there is at least partially procedural, allowing Twitter to try again.

Twitter had argued, of course, that it has a First Amendment right to publish this information. But the government -- and the judge -- noted in response that you don't have a First Amendment right to publish classified information if you are a party that is "subject to secrecy obligations."

Under Executive Order 13526, information may be classified by the “original classification authority determines that the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security, which includes defense against transnational terrorism, and the original classification authority is able to identify or describe the damage.”...

The First Amendment does not permit a person subject to secrecy obligations to disclose classified national security information.

That said, the court notes that this is partially a procedural issue, because Twitter can (and perhaps should) first challenge whether or not the classification on those aggregate statistics is appropriate:

The Court agrees with the Government that Twitter has not alleged that the information is not properly classified by the Government. Count I challenges the FISA non-disclosure provisions as being prior restraints of indefinite duration, but the claim does not take into account the fact that a classification decision is necessarily limited in duration by its nature, as the Government asserts. Along those same lines, Count II’s as-applied challenge contends that the FISA nondisclosure provisions are unconstitutional, but does not account for the fact that the Government has refused to permit disclosure of the aggregate numbers on the grounds that the information is classified pursuant to the Executive Order (not because of any FISA order or provision).

Again, Twitter has conceded that the aggregate data is classified. In the absence of a challenge to the decisions classifying that information, Twitter’s Constitutional challenges simply do not allege viable claims.

In short: try again, but this time challenge whether or not the aggregate data is properly classified.

On the two other issues in the case, the DOJ lost both. First, it argued that since it was the FISA Court, and not the DOJ, that classified the statistics, the challenge should be under FISA's jurisdiction and not the court that it's in. The court here, disagrees, and points out that Twitter is not challenging a specific FISA ruling, but rather the aggregate data.

The Government does not identify any order of the FISC addressing, as a general matter, publication of aggregate data about receipt of legal process, the crux of the matter before the Court here. Likewise, Twitter’s Amended Complaint does not challenge any prohibition on disclosure in any individual FISC order, FISA directive, or NSL. Rather, Twitter contends that the Government’s reliance on the FISA non-disclosure provisions as a basis for prohibiting disclosure of aggregate data about legal process directed to Twitter violates the First Amendment. Nothing in the Amended Complaint would require the Court to interpret, review, or grant relief from any particular FISC order or directive.

The other DOJ argument was that Twitter did not have standing regarding the Espionage Act. Twitter, in its lawsuit, was seeking declaratory judgment that it is not running afoul of the Espionage Act in publishing such data. It did this because the DOJ had warned Twitter that publishing such data might violate the Espionage Act. Seems fairly straightforward, right? But the DOJ told the court that Twitter's concerns are "merely speculative" and thus it had no standing on this issue. The court isn't buying it:

The Court finds that the allegations here—that Twitter presented the draft Transparency Report it planned to publish to the Government and that the Government informed Twitter that it could not publish the information because it is classified—are sufficient to show an “imminent” injury to establish Twitter’s standing here. The Government’s contention that the threat of prosecution is low because there are other avenues of recourse for Twitter to challenge individual nondisclosure orders simply does not address the issue here, reporting of aggregate data. The motion to dismiss the Espionage Act claim on these grounds is DENIED.

Of course, it's the First Amendment claims that are the main show here -- and without them, the rest of the case is pretty limited. It seems likely that Twitter will file an amended complaint now, arguing that the classification was improper, but then it just becomes a fight over classification, and the government is pretty good about screaming "national security!!!!" at the top of its lungs whenever people challenge classification decisions. The alternative, of course, is that Twitter could appeal the First Amendment decision and see if the appeals court thinks the judge here got that part wrong. Either way, I imagine we'll find out soon.

Filed Under: doj, espionage act, first amendment, fisa court, fisc, national security letters, nsls, transparency, transparency report, warrant canary
Companies: twitter

Court Says National Security Letters Are Now Constitutional Under USA Freedom Act

from the time-to-appeal dept

We've written quite a lot about National Security Letters (NSLs) over the years. This widely abused tool allowed the Justice Department/FBI to issue simple letters (technically administrative subpoenas) demanding information from companies with no prior judicial review -- and frequently with a perpetual gag order, so that a company can't even say that it had received an NSL. The FBI hands these out by the dozens. Back in 2013, there was a somewhat surprising, but important, district court ruling in California saying that national security letters were unconstitutional, and that legislation was needed to fix them.

The government appealed -- and while that appeal was going on, Congress passed the USA Freedom Act, which included some modifications to the NSL provisions in the PATRIOT Act. Based on that, the 9th Circuit appeals court sent the case back down to the district court to review based on the new law. And, unfortunately, in a newly unsealed opinion (from the end of March), Judge Susan Illston found National Security Letters to now be constitutional. As Illston notes, under the old NSL rule, courts were limited in being able to review NSLs. However, under the version amended by the USA Freedom Act, there is at least some potential for judicial review, and that now makes them constitutional in the eyes of the court:

The Court concludes that as amended, section 3511 complies the constitutional requirements and curses the deficiencies previously identified by this Court. Section 3511 no longer contains the "essentially insurmountable" standard providing that a court could modify or set aside a nondisclosure requirement only if the court found there was "no reason to believe" that disclosure may result in enumerated harm. The government argues, and the Court agrees, that in the USAFA, Congress implicitly ratified the Second Circuit's interpretation of section 3511 as "plac[ing] on the Government the burden to persuade a district court that there is a good reason to believe that disclosure may risk one of the enumerated harms, and that a district court, in order to maintain a nondisclosure order, must find that such a good reason exists."...

The Court rejected the argument, presented by the EFF which brought the case, that even this new standard is unconstitutional because it remains incompatible with the First Amendment in gagging speech not based on necessity, but rather on the mere possibility of harm. The Court doesn't buy it, though, saying that since the court can now review any NSL gag order, it's okay.

The EFF, as you might imagine, is not happy about this and will be appealing to the 9th Circuit, where the case had been before, prior to the USA Freedom Act pushing it back down.

In its new order in our cases, the district court acknowledged that USA FREEDOM’s kludgy reciprocal notice procedure does not live up to the high First Amendment standards in Freedman, but it still called this new procedure good enough. That’s because the court agreed with the Second Circuit that NSLs are not “classic prior restraints” because they do not gag “those who customarily wish to exercise rights of free expression,” such as movie exhibitors and book publishers. This might have seemed plausible when the Second Circuit first wrote it in 2008, as it was less common for companies to speak publicly about government requests for customer information.

But these days, after the immense public debate caused by the Snowden revelations, service providers regularly publish transparency reports about government data requests, and companies like Apple, Microsoft and Google engage in public fights against overbroad requests and gag orders. Users are very concerned about the privacy and security of their data held by these companies. And contrary to the court’s assumption, many providers—like our clients—want to talk about these requests.

But even if it were true that gagged communications providers aren’t “classic speakers,” NSLs are classic prior restraints. The First Amendment has never reserved its highest speech protections for only the most talkative—just the opposite, in fact. Prior restraints arise when the government preemptively tells someone they cannot engage in speech, which is exactly what NSL gag orders do.

The EFF does note that there is a silver lining in this ruling, in that the gag order for one of its clients does not meet the new standard, meaning that, so long as the DOJ does not appeal the ruling, one of the anonymous EFF clients may be able to reveal who they are and that they received an NSL years ago...

Filed Under: 9th circuit, constitutional, fbi, first amendment, gag orders, national security letters, nsl, usa freedom act