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

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.