In what has been characterized as a sharp rebuke to the federal government, last year, U.S. District Judge Susan Illston, of Northern California found that that the gag order provision of national security letters (NSLs) violated the First Amendment. The nondisclosure rule “significantly infringe[s] on speech regarding controversial government powers,” the judge wrote in March 2013. In addition, Judge Illston ordered the FBI to stop sending NSLs altogether but put the ruling on hold in order for the government to file an appeal. That appeal is happening now.
That was the question yesterday before a federal appeals court in San Francisco, where government lawyers argued that National Security Letters — FBI requests for information that are so secret they can’t be publicly acknowledged by the recipients — were essential to counterterrorism investigations. The telecom company and internet provider that have challenged the National Security Letters (known as NSLs) still can’t even be named.
The government, predictably, did appeal, and in arguments yesterday before the 9th Circuit, a Justice Department lawyer said that they would lose “an extremely useful tool” if the court upholds the ban on NSLs. (Documents related to the case can be found here.)
We can only hope that the government has finally reached the court's limit of patience for their twisted arguments articulated through the use of Orwellian language.
The Intercept has the story written by Cora Currier -- Court Spotlights the FBI’s Super-Secret National Security Letters
The letters, the reach of which was expanded under the Patriot Act in 2001, let the FBI get business records from telephone, banking, and Internet companies with just a declaration that the information is relevant to a counterterrorism investigation.
The Electronic Frontier Foundation, whicih is representing the unnamed communications companies, argues that the FBI can get such information with a subpoena or another method with some judicial oversight.
One of the judges seemed to question why there was no end-date on the gag orders, and why the burden was on the recipients of NSLs to challenge them. “It leaves it to the poor person who is subject to those requirements to just constantly petition the government to get rid of it,” said the judge, N. Randy Smith.
And let's not forget that the FBI sends out thousands of NSLs per year (21,000 in fiscal year 2012 alone) that profoundly affect an exponential number of people's lives.
But the push-back has surged lately...
The Justice Department’s Inspector General has put out several reports in recent years critical of the bureau’s use of the letters, and President Obama’s surveillance review group recommended stricter standards for them earlier this year.
Google, Yahoo, Facebook and Microsoft filed a brief in support of the NSL challenge, arguing that they want to “publish more detailed aggregate statistics about the volume, scope and type of NSLs that the government uses to demand information about their users."
Twitter also joined the fight earlier this week, announcing it was filing a suit against the U.S. government over restrictions on disclosures. For now, tech companies are allowed to disclose in broad ranges how many NSLs and FISC orders they receive from the government. But Twitter wants more specificity.
At least in this case, unified, corporate push-back to government overreach... is invaluable.