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…

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Comments on “Court Says National Security Letters Are Now Constitutional Under USA Freedom Act”

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24 Comments
Anonymous Coward says:

The Court concludes that as amended, section 3511 complies the constitutional requirements

nothing… and I MEAN NOTHING complies with the Constitution if any of these items are true.

-NSL can suppress the business from going to the press with the details of the NSL!
-NSL is requesting anything without a warrant!

Last time I checked, the NSL does both of these things! It is not in compliance with the US Constitution!

Baa Baa Black Sheep says:

What is the situation if one does NOT receive an NSL?

This looks like a good opportunity for outsourcing the receipt and opening of all government originating mail to a foreign based company. If you don’t receive the mail how can you ever comply with the contents. Even if hand delivered by a process server, I am sure one could arrange for it to be delivered into the appropriate foreign hands.

Either that or leave the country completely. If you have no access to any business records at all, you cannot grant access to said business records irrespective of what government may ask, particularly if all records are immediately encrypted and sent to foreign locations for storage.

Uriel-238 (profile) says:

Re: Time to buy up that island.

Ladar Levision closed Lavabit after receiving a self-gagged NSL demanding nothing short of betrayal of all Lavabit’s clients. Now Levisiob is an encryption activist in Europe.

The US economy is going to go gray as essential services and products become criminalized, and we end up moving utilities like encryption and private communications under the sink.

I wonder if there will be additional work for us techs from common smartphone users who’ve seen enough to develop a healthy paranoia of the establishment, but don’t have the time / patience / knowhow to kit their own devices with protection from incrimination.

Anonymous Coward says:

Re: Re: Time to buy up that island.

It’s time to start trafficking in bogus NSL’s.

Think about it: drop into a business with an NSL demanding information on, say, Donald Trump; or Charles Koch. You only have to “prove” you’re an FBI agent (for example) once and there’s your data.

No come-backs, either. If the real FBI should drop by and ask, well the recipient can’t mention the NSL, can they? Gag order. Applies to everyone, remember? Even to telling the courts or other FBI agents.

It’s like a perfect trap door: obtain information by criminal means, with no come-back. Even if the FBI should discover a bogus NSL, it’ll be from two years past, no evidence will remain. And there’s no hope of determining if anyone else has gotten more of the bogus NSL’s. Who would you ask–and would they risk imprisonment to answer in the affirmative?

I’d be very surprised if there isn’t a flourishing industry in bogus NSL’s, possibly even in some cases run by rogue agents.

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