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

Twitter Reveals Two National Security Letters After Gag Orders Lifted; Rightly Complains About Gag Orders

from the first-amendment? dept

In the last few months, we've seen multiple internet companies finally able to reveal National Security Letters (NSLs) they had received from the Justice Department, demanding information from the companies, while simultaneously saddling those companies with gag orders, forbidding them to speak about the orders. It started last June, when Yahoo was the first company to publicly acknowledge such an NSL. In December, Google revealed 8 NSLs around the same time that the Internet Archive was able to reveal it had received an NSL as well. Earlier this month, Cloudflare was finally able to reveal the NSL it had received (which a Senate staffer had told the company was impossible -- and the company's top lawyer was bound by the gag order, unable to correct that staffer).

And now we can add Twitter to the list. On Friday, the company announced that the gag order on two NSLs had been lifted. There's one from 2015 and another from June of last year. Twitter appears relieved that it's finally able to reveal these, but quite frustrated that it was gagged at all.

If you don't recall, Twitter has been much more aggressive than basically all of the other tech companies in challenging these gag orders. Back in 2014, Twitter sued the government, claiming it was a First Amendment violation to enforce these gag orders. That was after most of the other major internet companies had come to an agreement over how and when they could report such requests. Twitter, thankfully, felt that the agreement between the DOJ and internet companies was way too stifling and has fought it:

Twitter remains unsatisfied with restrictions on our right to speak more freely about national security requests we may receive. We continue to push for the legal ability to speak more openly on this topic in our lawsuit against the U.S. government, Twitter v. Lynch.

We continue to believe that reporting in government-mandated bands does not provide meaningful transparency to the public or those using our service. However, the government argues that any numerical reporting more detailed than the bands in the USA Freedom Act would be classified and as such not protected by the First Amendment. They further argue that Twitter is not entitled to obtain information from the government about the processes followed in classifying a version Twitter’s 2013 Transparency Report or in classifying/declassifying decisions associated with the allowed bands. We would like a meaningful opportunity to challenge government restrictions when “classification” prevents speech on issues of public importance.

Our next hearing in the Lynch case is scheduled for February 14, 2017. Concurrently, Twitter is using the statutory means provided in the USA Freedom Act to seek more transparency into similar NSL requests, and will provide updates as they become available.

That last paragraph makes it fairly clear (though it should have been obvious) that Twitter is still gagged on more NSLs. And that's kind of a key thing in all of these recent "releases" of NSLs. They're only released when the government lifts the gag orders on them -- and that's very troubling. There is a long history in this country of the government abusing its powers to spy on the public. If it alone gets to decide when to reveal the nature of its surveillance efforts, then the public really has no insight or understanding into just how widespread the practice might be.

And the most ridiculous thing in all of this is that it's hard to fathom any actual justification for this kind of thing. Yes, you can understand not necessarily revealing an ongoing investigation into a crime, but the gag orders go much further, barring companies from even admitting how many NSLs they receive. It's hard to see how revealing that kind of information -- in any way -- compromises law enforcement or intelligence investigations. The only thing it serves to do is to hide from the public the scale of the surveillance.

Filed Under: doj, first amendment, gag order, national security letter, nsl, nsls
Companies: twitter

Cloudflare Finally Able To Reveal FBI Gag Order That Congress Told Cloudflare Couldn't Possibly Exist

from the letter-that-dare-not-speak-its-[REDACTED-IN-FULL] dept

Another one of the FBI's thousands of National Security Letters has been made public -- along with its recipient. Cloudflare's latest transparency report (its seventh to date) contains a bonus: a 2013 NSL [PDF] the FBI felt no longer needed to kept secret.

This NSL was received in 2013, and was challenged by Cloudflare and the EFF. It's only now being made public, and that's largely due to litigation and the USA Freedom Act's changes to NSL review policies. Rather than review them every three years-to-never, the FBI must now review them more frequently. Better still, recipients are now allowed to challenge NSL gag orders within one year of receiving them. This places the burden back on the government to prove ongoing secrecy is needed.

Shortly before the new year, Cloudflare received a letter from the FBI rescinding the NSL's gag order.

The letter withdrew the nondisclosure provisions (the “gag order”) contained in NSL-12-358696, which had constrained Cloudflare since the NSL was served in February 2013. At that time, Cloudflare objected to the NSL. The Electronic Frontier Foundation agreed to take our case, and with their assistance, we brought a lawsuit under seal to protect its customers' rights.

In this particular case, the NSL itself was pulled by the FBI as a result of the lawsuit.

Early in the litigation, the FBI rescinded the NSL in July 2013 and withdrew the request for information. So no customer information was ever disclosed by Cloudflare pursuant to this NSL.

So much secrecy surrounds NSLs -- by default -- that Ken Carter of Cloudflare wasn't even able to correct a Senate staffer who told him things that were completely untrue.

In early 2014, I met with a key Capitol Hill staffer who worked on issues related to counter-terrorism, homeland security, and the judiciary. I had a conversation where I explained how Cloudflare values transparency, due process of law, and expressed concerns that NSLs are unconstitutional tools of convenience rather than necessity. The staffer dismissed my concerns and expressed that Cloudflare’s position on NSLs was a product of needless worrying, speculation, and misinformation. The staffer noted it would be impossible for an NSL to issue against Cloudflare, since the services our company provides expressly did not fall within the jurisdiction of the NSL statute. The staffer went so far as to open a copy of the U.S. Code and read from the statutory language to make her point.

That's what a gag order does: allows misinformation to go uncorrected. The staffer's interpretation of US Code may have been more to the letter of the law, but Cloudflare's Carter knew -- from personal experience -- that the FBI's interpretation was different.

Because of the gag order, I had to sit in silence, implicitly confirming the point in the mind of the staffer. At the time, I knew for a certainty that the FBI’s interpretation of the statute diverged from hers (and presumably that of her boss).

Not only does the default secrecy allow the FBI to continue to pursue questionable requests with NSLs, but it also allows it to deploy them in apparent violation of US law, right under the nose of its Congressional oversight.

Congratulations to both the EFF and Cloudflare, which worked together to protect a user's privacy against the FBI's self-issued NSL. Apparently the demand for information couldn't hold up when scrutinized by a judge for the first time. The fact that the USA Freedom Act only recently went into effect likely explains the three year-plus gap between the NSL's withdrawal and the lifting of the gag order.

While the USA Freedom Act's NSL-handling changes are an improvement, they're far from perfect. The burden of proof has been shifted to the government, but there's very little compelling it to respond to gag order challenges quickly, as the EFF points out.

Under the USA FREEDOM Act of 2015, the FBI is required to periodically review outstanding NSLs and lift gag orders on its own accord if circumstances no longer support a need for secrecy. As we’ve seen, this periodic review process has recently resulted in some very selective transparency by the FBI, which has nearly complete control over the handful of NSL gags it retracts, not to mention the hundreds of thousands it leaves in place. Make no mistake: this process is irredeemably flawed. It fails to place on the FBI the burden of justifying NSL gag orders in a timely fashion to a neutral third party, namely a federal court.

The EFF's legal battle against NSLs continues. We've seen incremental lifting of secrecy as a result of its multiple NSL challenges, but the EFF is hoping to see a court find the whole NSL scheme -- warrantless demands for user data and identifying information the FBI often uses to route around judicial rejection -- to be unconstitutional.

Filed Under: congress, fbi, gag order, nsl
Companies: cloudflare, eff

Internet Archive Calls Out FBI For Using Outdated NSL Boilerplate; Scores Removal Of Gag Order

from the shame:-the-universal-motivator dept

One of the reforms included in the USA Freedom Act is the actual ability to challenge National Security Letter gag orders. Prior to the passage of this bill, recipients were limited to challenging gag orders once per year -- challenges that rarely succeeded. The process is no longer restricted to annual challenges, but many recipients won't be aware of this fact because the FBI hasn't been interested in telling them.

The Internet Archive -- with the assistance of the EFF -- has managed to lift a gag order on an NSL it received. This NSL [PDF], like the thousands of NSLs the FBI issues each year, came with outdated information regarding recipients' options for challenging gag orders.

The NSL we received includes incorrect and outdated information regarding the options available to a recipient of an NSL to challenge its gag. Specifically, the NSL states that such a challenge can only be issued once a year. But in 2015, Congress did away with that annual limitation and made it easier to challenge gag orders. The FBI has confirmed that the error was part of a standard NSL template and other providers received NSLs with the same significant error. We don’t know how many, but it is possibly in the thousands (according to the FBI, they sent out around 13,000 NSLs last year). How many recipients might have delayed or even been deterred from issuing challenges due to this error?

Having been caught using outdated boilerplate, the FBI will now be sending out thousands of correction letters [PDF]. It's not as though the FBI wasn't aware of the changes in the laws governing NSLs. It likely found it more conducive to its secrecy aims to allow the old boilerplate to remain until recipients caught on.

Not only will the FBI be updating its NSL boilerplate, but it has apparently been shamed into transparency… at least in this particular case. The gag order on this NSL has been dropped and the Internet Archive is allowed to publish the redacted request.

The request asks for all personal information related to the targeted accounts from "inception to present." But there's another problem with the request which goes beyond outdated boilerplate. As the EFF's letter to the FBI [PDF] points out, the Internet Archive isn't the sort of entity the FBI can actually serve an NSL to.

18 U.S.C. 2709 is inapplicable to the Archive in this matter because the Archive is a library. Under 2709(g), the FBI cannot issue an NSL demanding records -- or imposing a nondisclosure requirement -- to libraries unless they are providers of wire or electronic communications services. The NSL does not specify which of the Archive's services it seeks records from and thus does not identify any context in which the Archive is a provider of a wire or electronic communication service.

The letter also points out that the FBI's gag order is unconstitutional prior restraint, something that runs contrary to the First Amendment. Of course, it's one thing for an NSL recipient to make this allegation. It's quite another to have it confirmed by a federal court. The EFF's constitutional challenge of NSL gag orders is currently awaiting review by the Ninth Circuit Court of Appeals. Whatever conclusion the court arrives at, there's little doubt that it will ultimately make its way to the US Supreme Court. Whether or not the Supreme Court decides to address it is likely still at least a year or two away.

But the voluntary lifting of a gag order by the FBI is a positive development -- one that suggests the more these orders are challenged, the more often the government will discover its demands for indefinite secrecy are rarely supported by the facts of the case.

Filed Under: fbi, gag order, national security letter, nsl, usa freedom act
Companies: eff, internet archive

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

FBI Lifts Gag Order On NSL Issued To Google... Which Doesn't Have Much To Say About It

from the THIS-JUST-IN:-mumblemumble...gag-order...mumble dept

The government's embrace of transparency -- an uncomfortable hug forced on it like a drunken uncle at a wedding reception by the passage of the USA Freedom Act -- has paid off for a local computer concern. Google is now able to speak in non-specifics about one (1) National Security Letter it has received.

The national security letter issued to Google was mentioned without fanfare in Google’s latest bi-annual transparency report, which includes information on government requests for data the company received from around the world in the first half of 2016.

Google received the secret subpoena in first half of 2015, according to the report.

Here's the original wording from the report, which follows actual specifics about new countries Google can add to the list of entities demanding user info from it (Algeria, Belarus, Cayman Islands, El Salvador, Fiji, and Saudi Arabia):

[P]ursuant to the USA Freedom Act, the FBI lifted a gag restriction on an NSL issued in the second half of 2015.

The law requires the FBI to "periodically" review its NSL-related gag orders to see whether the restriction still needs to be in effect. Theoretically, the gag order should be lifted three years after the NSL is issued or the investigation concludes, whichever comes first. Theoretically. I guess we'll see if the gag order floodgates begin opening in 2019.

In addition to finally being able to barely talk about it, Google was also able to move the transparency dial forward exactly one click.

To reflect this, we have updated the range of NSLs received in that period — July to December 2015 — from 0-499 to 1-499.

What Google hasn't done is publish the request itself, something both Yahoo and Signal did once given the green light by the feds. It cited no reasons for withholding the contents. However, it may be unable to fully publish the letter, despite the lifting of the gag order, as The Intercept's Jenna McLaughlin points out.

It’s… unclear why Google wouldn’t immediately publish the document — unless the gag is only partially lifted, or the company is involved in ongoing litigation to challenge the order, neither of which were cited as reasons for holding it back.

In other news, Google saw an increase in FISA-ordered requests for user info, bumping it up by about 5,000 total accounts as compared to the previous reporting period.

Hopefully, Google's ungagged-but-still-secret NSL won't stay secret for much longer. It would be troubling if this were to become Google's standard policy -- the announcement of gag order removals but with no further details forthcoming. Not much "transparency" in the Transparency Report, unfortunately… not if that's how it's going to be handled.

True, much of the opacity is still the government's fault: the not-at-all-useful "banding" that makes NSL numbers impossible to parse (1-499 could mean one NSL… or almost 500 in one reporting period), the gag orders that remain in place forever, etc. But private companies shouldn't take their cues from naturally-secretive government agencies. They're pretty much all we have to provide us with an outside, somewhat unrestricted measure of the government's surveillance efforts.

Filed Under: fbi, gag order, nsl, secrecy, transparency
Companies: google

EFF's Challenge Of NSL Gag Orders Reaches The Ninth Circuit Court Of Appeals

from the FBI-still-not-a-fan-of-the-Constitutional dept

In a rather quick turnaround, the EFF has had its brief [PDF] it filed under seal in September unsealed by the Ninth Circuit Court of Appeals. The brief challenges the FBI's use of gag orders with its National Security Letters -- the administrative subpoenas the FBI issues to recipients without having to run them by a judge.

Unfortunately, the brief has been heavily redacted and both the appellee and appellant remain undisclosed. The filing challenges NSL gag orders, claiming them to be unconstitutional infringements on the First Amendment. The EFF is arguing on behalf of its redacted clients, both "electronic communications providers."

Beyond preventing the providers from informing the FBI's targets that their communications/data are being turned over to the government, the EFF points out that the gag orders have been stopping them from discussing these limitations with Congress -- even to the point of correcting bad information given to legislators by the FBI itself.

An NSL gag prevented [redacted] Appellant from correcting [lengthy, two-line redaction] and that [another lengthy redaction] ER 129. Similarly, an NSL gag prevented [redacted] Ithrough its [redacted] from telling Congress and the public about [redacted] experiences as an NSL recipient and explaining why those experiences informed its belief that the FBI-supported amendments to the NSL statute proposed in 2014 (and later enacted) would be insufficient to remedy problems with the FBI's use of NSLs.

This is spelled out a little more explicitly later in the filing.

But as discussed above, the gag orders had the direct effect of preventing [redacted] from informing a legislative official [redacted] that [redacted] seriously misapprehended the scope of that statute.

During the period when this legislation was being argued, recipients of these letters were forbidden to discuss them, providing the FBI with a handy, one-sided platform to deploy its arguments in favor of the changes it wanted.

As the law stands now, the FBI can issue as many NSLs as it wants (and it does, at a rate of well over 10,000 per year) without judicial oversight and demand recipients never discuss them. The only judicial review these NSLs receive is after the fact and that's only if the court feels NSL recipients are actually in a position to demand periodic review of indefinite gag orders.

The FBI can also review gag orders itself to see if they're still justified, but it's wholly internal and the process allows the agency to decide in its favor every time. It places the FBI under no obligation to turn over its internal findings to Congressional oversight or even inform recipients when investigations are closed and a gag order could theoretically be lifted.

But for all the arguments about means, methods, terrorism, ongoing investigations or whatever, it is the FBI is using to justify issuing tens of thousands of gag orders every year, it's still nothing more than indefinite prior restraint.

The gag order provision of the NSL statute violates the First Amendment for two independent reasons.

First, the statute lacks the substantive and procedural requirements necessary to uphold a prior restraint because it allows the government to unilaterally impose indefinite gags on recipients and, in the rare instance that a court reviews the gag, requires the court to approve it upon a showing of the mere possibility of harm. The district court justified upholding the NSL statute only by inventing a new category of prior restraints involving “non-customary” speakers as a basis for reducing the First Amendment protections against prior restraints.

Second, the statute is a content-based restriction that fails strict scrutiny because it allows the FBI to impose indefinite, overinclusive gags that bar recipients from discussing government conduct without any consideration of less restrictive means of protecting national security.

This Court should reject the district court’s improper departure from established First Amendment law and hold that the NSL statute is unconstitutional.

The FBI's NSL closed-loop needs to be cracked open. It's writing itself permission slips for data and other records from service providers at a rate of more than 30 times a day and demanding secrecy forever in almost every case. It's not just screwing with companies, their customers, and a few Constitutional amendments (1st, 4th, 5th), it's actually preventing lawmakers and oversight committee members from hearing the other side of the argument when crafting legislation.

Filed Under: 9th circuit, free speech, gag order, nsl, surveillance
Companies: eff

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Another NSL Challenge Is Made Public; Court Decides Government Can Keep Gag Order In Place Indefinitely

from the new-law-means-challengers-can-be-told-'no'-more-frequently dept

Another National Security Letter issued by the government has made its way into the public domain. While it's still likely years away from the full exposure finally granted to Nicholas Merrill of Calyx Internet Access (after 11 years!), this one may not stay covered up for the next decade.

The Maryland District Court finds the gag order issued along with the NSL constitutional, but has problems with the lack of an expiration date. But it still defers to the government's best judgment as to when it will be "safe" to disclose the contents of the letter. The difference here is that the court has the USA Freedom Act to contend with, which slightly alters the acceptable amount of secrecy.

Respondent notified the FBI that it intended to file a petition to set aside the nondisclosure provision of the NSL. Respondent opined that the nondisclosure provision may no longer be needed. Respondent also invited the Government to initiate a judicial review proceeding in lieu of Respondent's filing a petition. The Government responded by initiating the instant proceeding.

Just prior to Respondent's filing of its opposition to the petition, the laws governing NSLs were amended via the USA FREEDOM Act of 2015, Pub. L. 114-23, 129 Stat. 268.1 Accordingly, the Court wiIl conduct its judicial review under the most recent version of the relevant statutes, specifically, sections 2709 and 3511 of Title 18, United States Code.

The unnamed respondent (redacted and under seal) claims the government hasn't met the burden of justifying the ongoing gag order -- an argument it has been forced to make without any knowledge of what the government has submitted (or withheld) to justify the continued secrecy. The court, however, has viewed material supporting the government's contentions and, no surprise, found in favor of national security.

There is reason to believe that disclosure ofthe information subject to the nondisclosure requirement during the applicable time period may result in a danger to the national security of the United States, interference with a criminal, counterterrorism, or counterintelligence investigation, interference with diplomatic relations, or danger to the life or physical safety of any person.

The problem is, the "applicable time period" is completely open-ended. Even with the added stipulations of the USA Freedom Act, the government can keep this gag order in place for the next several years, provided the government periodically asserts that "danger" of the national security type is still present.

At present, the nondisclosure requirement in this case has no ending date, and the Court's review of its continued viability falls within an interim period between the effective date of the USA FREEDOM Act of 2015, which directs the Attorney General to "adopt procedures with respect to nondisclosure requirements ... to require ... review at appropriate intervals ... and termination ... if the facts no longer support nondisclosure," and the anticipated but unknown date when the Attorney General will have actually promulgated such procedures. In the absence of those governing procedures, the Court will require the Government to review every 180 days the rationale for the nondisclosure requirement's continuation. Once the Attorney General's procedures are in place, then the nondisclosure requirement will be subject to review thereunder, and this Court's mandate of review every 180 days will no longer be in force.

So, the gag order will only be looked at every six months until the Attorney General takes over, at which point it will be reviewed at "appropriate intervals." Putting this into the hands of the Attorney General seems less likely to result in a ruling in favor of disclosure than leaving it up to a more impartial court. Even with this "fix" in place, there's very little reason to expect the gag order to be lifted any time soon.

As for the unnamed respondent's First Amendment arguments, the court says these alleged violations are outweighed by the government's need for secrecy in national security investigations. Furthermore, it's suggested the respondent should be happy the government has grudgingly allowed it to report nonspecific information on requests for subscriber data.

The methods or reporting established in §1874 -- with reporting allowed in "bands" of numbers and with restriction on the period of time for which a report may be issued -- are a reasonable accommodation of an ECSP's desire for transparency and the Government's compelling interest in national security.

There's no telling who the service provider is that's challenging the gag order. One of the few details that can be sussed out from the documents no longer under seal is that the NSL likely arrived in the first three months of this year. At this point, the service provider won't be able to have the decision reviewed until summer of next year and after that, it will be in the Attorney General's hands. The encouraging sign is that the Attorney General's office has already agreed to unseal certain documents in this case, rather than keep the entire discussion hidden from the general public. Granted, the documents do little more than confirm the government's belief that the gag order should remain in place -- without providing anything more than vague national security concerns to back up that assertion.

Filed Under: attorney general, doj, fbi, first amendment, free speech, gag order, national security, national security letter, nsl