Government Forces Free Press Advocacy Group To File Its Amicus Brief In NSL Case Under Seal

from the now-they're-OUR-secrets dept

Throw the words "national security" around frequently enough and you might start to believe it actually means something. The EFF's battle against the government's use of National Security Letters (NSLs) is being fought mostly under seal (the EFF can't even reveal whom its clients are). To be sure, there is sensitive material being discussed, but the government's paranoia has extended so far as to seal documents written by entities with no access to classified or sensitive material. (h/t to Trevor Timm)

The Reporters Committee for the Freedom of the Press (RCFP) recently filed an amicus brief in this case on the EFF's behalf, arguing that the non-disclosure demands of NSLs are a form of prior restraint, something that is clearly unconstitutional. It also notes the chilling effect this has had on journalism.

The information at issue is not just important for its own sake, but because, as recent reports have shown, fear of government surveillance has deterred confidential sources from speaking to journalists about a wide range of topics. The brief emphasizes that more knowledge about the NSL program can give sources and reporters confidence that their communications are confidential.
The government's desire for secrecy extends even further than the NSLs' gag orders. This secrecy has now spilled over into what would normally be the public's domain.
The Electronic Frontier Foundation’s challenge involves three cases, all of which are under seal. The Reporters Committee was required to file its briefs under seal, but submitted a motion to the Ninth Circuit asking it to unseal its brief.
Whatever the government's stated reasons for requiring the brief to be filed under seal, it's clearly wrong.
“The Court cannot constitutionally seal this brief,” the Reporters Committee wrote in the motion. “Amici have had no access to confidential materials in the case; the brief only includes information that is already public; and there are clear public policy reasons for requiring that the materials be open.”
The government doesn't know when to quit. It's sealed brief requirement makes about as much sense as government agencies' initial reactions to the first few leaked NSA documents -- instructing their employees to not look at publicly-available information because the documents were supposedly still "classified." As if that designation made any sense under the circumstances.

This is the same sort of reasoning: NSLs are super-secret and therefore, anything related to these should be withheld from the public, even if the brief contains nothing more than publicly-available information.

Reader Comments (rss)

(Flattened / Threaded)

  1. identicon
    Anonymous Coward, Apr 14th, 2014 @ 3:58am

    The government does not want people considering just what information that they can request in secret from every company, and how much they are grabbing.

    reply to this | link to this | view in thread ]

  2. icon
    That Anonymous Coward (profile), Apr 14th, 2014 @ 4:09am

    But if it appears in a court document, the public might lose faith in the secret laws we use.

    Opposing a possibly misused law, we've shown the 'checks & balances' to these secret powers are impotent, having to be filed under seal raises serious questions.

    When everything looks like it needs to be a secret, perhaps we need to question that system. It is being overused and they keep pushing to hide more and more. Our Government decries dictators who hide things from their people, while trying to hide their own abuses of their own citizens.

    We need to demand they stop and make it stop.
    They have gone much further than many of the dystopian fiction writers imagined, sliding down the slippery slope that was always warned of. We need to climb back up the slope even if it is hard and arduous work.

    reply to this | link to this | view in thread ]

  3. identicon
    Anonymous Coward, Apr 14th, 2014 @ 4:40am

    Dear Government,

    If you've got nothing to hide, you've got nothing to fear.

    Your Constituents

    reply to this | link to this | view in thread ]

  4. identicon
    Anonymous Coward, Apr 14th, 2014 @ 4:42am


    Well, it's obvious they have something to hide. There's a lot of criminal activity going on in the Houses of Congress and the Senate. Otherwise, why would they stoop to having everything secret?

    reply to this | link to this | view in thread ]

  5. identicon
    Anonymous Coward, Apr 14th, 2014 @ 5:17am

    Re: Re:

    And they should eat their own cooking.

    reply to this | link to this | view in thread ]

  6. identicon
    Anonymous Coward, Apr 14th, 2014 @ 7:42am

    So why were they required to file under seal? Is that just some blanket requirement in this case, or was this group told that they specifically needed to file under seal?

    Also, if the court does not unseal promptly, RCFP needs to publish their brief themselves. It's an amicus brief, for crying out loud. Everything in there, they have a First Amendment right to say.

    reply to this | link to this | view in thread ]

  7. identicon
    Anonymous Anonymous Coward, Apr 14th, 2014 @ 7:43am

    I've got a secret

    The rules (aka secret laws) you broke are secret.
    The rules you broke are interpreted by a secret court.
    The NSL you received notifying you of our secret investigation of you is secret.
    The indictment we will cause, in secret, will also be a secret.
    The trial and all of its documents will be in camera and sealed, as they are also secret.
    The only problem we have is the privately owned, operated, money sucking political funding machines where we will incarcerate you are not secret and the damned CIA cannot keep their mouths shut.

    reply to this | link to this | view in thread ]

  8. identicon
    Anonymous Coward, Apr 14th, 2014 @ 7:46am

    By the way, the correct response to this request is to file openly. With the courts, with the press (domestic and abroad), and with Amnesty International and the UN.

    Because fuck that secrecy with a rusty pitchfork.

    reply to this | link to this | view in thread ]

  9. identicon
    Anonymous Anonymous Coward, Apr 14th, 2014 @ 9:08am

    Another Analysis

    Scott Greenfield over at Simple Justice has this analysis of this post:

    reply to this | link to this | view in thread ]

  10. identicon
    Anonymous Coward, Apr 14th, 2014 @ 10:10am


    It's not usually wise to thumb your nose at a judge who is considering your arguments.

    Wait till after the case is over. Then do as you suggest.

    reply to this | link to this | view in thread ]

  11. icon
    That One Guy (profile), Apr 14th, 2014 @ 10:46am

    Re: Re: a judge who is considering your arguments.

    If this is any indication, he isn't, the judge has already made up his mind and the entire thing is just about going through the motions.

    Ordering anything and everything to do with the case sealed, even things that have no classified information whatsoever in them makes it pretty clear the judge has already bought the government's argument in it's entirely.

    reply to this | link to this | view in thread ]

  12. icon
    Jay Mitsuru (profile), Apr 14th, 2014 @ 10:48am

    The Procedures are not very flexible...

    Not to sound like a shill (though I guess that shoe fits since I'm a Fed Employee) the whole "don't read these publically Classified documents that have been released on the internet" stemmed from the fact that within the security management programs 'improper handling' is not the same as 'declassification'. When you're awarded a clearance you agree to follow certain rules with regards to accessing the information.
    Though to be honest, the brief I received following the leaks stated that I shouldn't be viewing it on *government* systems, and only *implied* I shouldn't do it on my own equipment. The procedures for classified message incidents would have shut down entire departments if Federal Employees were willy-nilly accessing leaked classified information on thier unclassified terminals.

    reply to this | link to this | view in thread ]

  13. identicon
    Zonker, Apr 14th, 2014 @ 11:21am

    So the government has an expectancy of privacy to their confidential National Security Letters, but the public has no expectancy of privacy to their personal communications. It's like playing Indian Poker against the house, but the house looks at and doesn't show its cards. You'll lose every single time.

    reply to this | link to this | view in thread ]

  14. identicon
    Anonymous Coward, Apr 14th, 2014 @ 5:39pm

    Secret laws, secret trials, in secret courts, and all that jazz. It's undemocratic! A sign of tyranny and corruption, at the highest levels of government.

    reply to this | link to this | view in thread ]

  15. icon
    The Wanderer (profile), Aug 31st, 2014 @ 8:45am

    I suspect that the rationale for requiring even briefs containing only publicly-available information to be filed under seal is that if only briefs containing confidential information are filed under seal, then the knowledge of which briefs are and are not thus filed - which is, itself, publicly-available information - will itself convey information *about* the information which is sealed.

    In other words: whether or not a given brief contains confidential information is metadata, and by allowing briefs which do not contain such information to be filed unsealed, that metadata would be revealed. By requiring all briefs to be filed under seal, they're attempting to prevent that metadata from coming out.

    reply to this | link to this | view in thread ]

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