Ninth Circuit Takes Another Look At NSLs, Says Indefinite Gag Orders Still Aren’t A Constitutional Problem

Legal Issues

from the prior-restraint,-possibly-forever dept

Back in 2017, the Ninth Circuit Court of Appeals decided there was nothing wrong with the indefinite gag orders the government slapped on its (extremely plentiful) National Security Letters (NSL). It told Cloudflare, Credo Mobile, and other parties challenging these gag orders that the Constitution remains untroubled by the government’s demands for silence, which could easily be extended until forever.

The government likes to put regular warrants under seal as well, but at least those get a first pass by courts. National Security Letters are glorified subpoenas the government can issue without court approval but still somehow prevent recipients and targets from talking about (or being notified of) them indefinitely. The accepted excuse are the two words proceeding “letter:” national security. Once this gets invoked, a whole lot of scrutiny tends to go out the window.

In 2017, the Ninth Circuit claimed to have applied strict scrutiny to this form of prior restraint (and potential Fourth Amendment violation). It said national security is a very compelling government interest and, that being the case, the government was under no obligation to subject its own gag orders to similar restraint.

Prior to that ruling, the USA Freedom Act was passed which required periodic review of NSL gag orders by the government and gave recipients a codified avenue to challenge nondisclosure demands. Unfortunately, the law only specified “periodic” review, leaving it to the discretion of those issuing NSLs and placing the burden almost entirely on recipients if they hoped to have gag orders lifted.

It’s this law and its own previous ruling that has now resulted in the Ninth Circuit Appeals Court pretty much saying the same thing all over again, but five years later. Following a denial of an en banc rehearing in another NSL gag order case, the Appeals Court has issued this decision [PDF], which pretty much leaves its 2017 ruling intact. The only real change is the list of plaintiffs. Otherwise, it’s just another blanket permission slip for the government to silence NSL recipients indefinitely.

The court says the USA Freedom Act-enabled review process is all the freedom NSL recipients need. And if the government says it doesn’t want to lift the gag order — no matter how many years have elapsed — it can certainly refuse to do so.

The panel rejected the provider’s assertion that a district court is constitutionally required on its own accord to schedule future judicial review once it finds a nondisclosure order to be statutorily authorized for the foreseeable future. The panel held that neither the NSL statute nor In re National Security Letter compelled the district court to schedule periodic judicial review in every case. Because the statutory scheme requires judicial review whenever a recipient of an NSL requests it, and the recipient in this case cited no circumstances mandating court-ordered periodic review, the panel found no constitutional infirmity in the order of the district court.

So, as specified in federal law, recipients can ask for court review. The government can also engage in its own “periodic” review of gag orders. But none of that adds up to mandated, periodic review by courts. The government can claim periodic means “every six months” or “every 20 years.” Unless challenged by recipients (and undertaken by courts), the government has no obligation to determine whether or not the gag order it applied to its own paperwork should stay in place.

And that means it’s all on recipients to get gag orders lifted. As long as some mechanism — no matter how useless or imperfect — is in place to give recipients an opportunity to have their petitions argued against by the government and denied by the courts, it’s apparently not a form of prior restraint. And that bizarre fact holds even when the government’s default gag order length is indefinite.

Filed Under: 1st amendment, 9th circuit, gag order, national security letter, nsl, prior restraint, usa freedom act