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.

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

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Finnegan (profile) says:

I’m still dismayed that the courts have ruled NSLs to be in any way constitutional. Are these judges reading a different constitution than the rest of us?

Hey, maybe the founding fathers enacted a separate, secret constitution on the side! One that threw out everything in the first one…like the legal equivalent of keeping your fingers crossed while lying.

That Anonymous Coward (profile) says:

“The FBI complained that doing so would be “cumbersome.””

More cumbersome than expecting people to be bound by secret laws from secret courts forever?

More cumbersome than having to show that these things were actually needed and not just some imagined plot from the minds that create their own “terrorist plots” to stop?

More cumbersome than giving up calling everything super secret, and never having to show that there was a real reason beyond because they could?

Anonymous Coward says:

No sympathy for the FBI's burden

The FBI could unburden itself at any time by declining to oppose the termination order. Much like the penalties enacted for a contempt of court finding, the FBI has only itself to blame for the burden it bears. I have no sympathy for them for the burden they imposed upon themselves, nor do I have any reason to believe they were truthful in stating it is such a serious problem. I would like to see the gag orders reviewed at least quarterly, without regard to whether it is an “ongoing investigation” since the FBI seems to have so many of those that it has no intention of ever finishing.

Anonymous Coward says:

and what measures will be implemented to ensure the FBI adheres to the rule and what ‘punishment’ will be dished out if they dont? i can guess that there will be nothing written down, so no record and the punishment will be nothing! and out of curiosity, as with all USA security forces, who is gonna make the FBI (or any other security force) do what it’s told rather than what it bloody well wants?

Coyne Tibbets (profile) says:

Puny USA Freedom Act

It’s not likely this decision matters. The last thing FBI wants is for people to be talking about NSLs, which would reveal the BS that FBI is demanding.

So great, FBI has to review all the NSL gags every 3 years or whatever. There’s no time limit or performance goals beyond “must review”, so the result of every review is most likely to be, “Gag remains in place.” It might be the 100th review of the NSL–300 year anniversary–but government secrecy is forever.

And even should FBI drop a gag on an NSL, you know it’s going to be accompanied by a nebulous threat that would scare the socks off of Daniel Webster:

“The gag on NSL x is hereby lifted. But be aware that the FBI investigates any misuse of information, and that such misuse is subject to 25 years in prison or a $1 million fine, or both.”

No doubt the recipient will read that and immediately start blabbing about that NSL, right? It’s not the first time we’ve seen a vague and ominous threat like that used to frighten people into knuckling under.

One way or another, FBI intends to keep NSLs secret forever, and no puny USA Freedom Act, or this court ruling, is likely to change that.

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