Justice Department Admits It Lied To Appeals Court Concerning Companies' Ability To Talk About National Security Letters

from the because-the-truth-looks-bad dept

Back in October, we wrote about the appeal on the legality of National Security Letters (NSLs), which are secretive filings from law enforcement demanding information with a perpetual gag order. In 2013, a district court had declared that NSLs were unconstitutional, but stayed that decision pending appeal. While the appeals court judges seemed skeptical, it still wasn't clear how they would rule. So it's interesting to see that the Justice Department has just admitted that it misled the court on some rather important points during the oral arguments.

In particular, with regards to the First Amendment question, the DOJ had insisted that companies could discuss the "quality" of the NSLs it had received, explaining it this way:
There is a category that the deputy attorney general provided that recipients can make disclosures and there is a category of 0-249 so recipients can disclose that. They’re allowed to disclose within these bands. And they can fully participate in the public debate, they can say as we have disclosed we’re in that band 0-249 and it can say the very things that [EFF Senior Staff Attorney Kurt Opsahl] said they can’t. They can say and we think the government is asking for too much in many of the NSLs we received and we want to talk to our fellow recipients and see if they too have felt that there’s too much and we think Congress ought to do something about that. They can do all of that. There’s nothing that says that they can’t comment, they’re allowed to make specific comments about quantity, there’s absolutely no ban on them commenting on the quality of those they’ve received.
Except that's not true, and it was clearly not true at the time. The EFF asked the DOJ to explain this statement in light of other statements that completely contradicted that claim, and suddenly the DOJ realized that it had been lying to the court on a rather important point. So it has now retracted those comments, claiming they were an "inadvertent misstatement."
In the course of discussing disclosures described in this letter, approximately 49 minutes into the Court's recording of the argument, government counsel indicated that if a company discloses that it is in one of these two bands starting with zero, it could publicly discuss the fact that it had received one or more NSLs and could discuss the quality of the specific NSL(s) that it had received.

That suggestion was mistaken. The district court correctly noted that “the NSL nondisclosure provisions . . . apply, without distinction, to both the content of the NSLs and to the very fact of having received one." .... The fact that a company may disclose that it has received 0 - 249 national security processes or 0 - 999 NSLs in a given period does not, by itself, allow that company to disclose that it has actually received one or more NSLs; the lower end of these bands was set at 0, rather than 1, in order to avoid such disclosures.
That last point is pretty interesting and probably explains why the Apple warrant canary changed. It wasn't about NSLs, but Patriot Act Section 215 requests (bulk records requests), but those fall into the "national security processes" list. So, it certainly sounds like Apple may have "violated" that agreement by originally saying it had received none, and once alerted to this fact, adjusted its language.

But, that's kind of crazy, and reveals just how problematic this setup is. Basically, the DOJ seems to be arguing that even if you haven't received any such requests, you can't say so, because you can only say within the 0 to 249 category. Thus, the DOJ appears to believe that all companies are bound by a gag order that they never received. Now that creates a rather serious First Amendment issue...

Reader Comments

Subscribe: RSS

View by: Time | Thread

  • identicon
    Anonymous Coward, 14 Nov 2014 @ 9:47am

    so hands up those who think there will be any changes then? the DoJ have been proven to lie, over and over, on some really serious issues, simply because it suits them to do so at the time. the extremely worrying thing is, how many people/companies have been convicted on lies, not evidence, presented in the cases by the DoJ? i cant see how any court can believe a single thing presented to it by the DoJ. this is the problem when continuously 'crying wolf'. eventually the truth comes out, then no one believes anything that side says, even when it is the truth.

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

    • identicon
      Anonymous Coward, 14 Nov 2014 @ 10:10am


      ... then no one believes anything that side says, even when it is the truth.

      But, if you look around America today, then you see that federal juries routinely convict people based on representations from assistant U.S. attorneys, working for the DoJ.

      How is that? Do the juries really believe those DoJ AUSAs? How is that?

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

  • icon
    MarcAnthony (profile), 14 Nov 2014 @ 9:56am


    Every politician/government agency that mentions “the public debate” in regards to the current situation are just the most disingenous double-talking bastiges that ever lived. Had it not been for the Snowden leaks, there would be no knowledge of anything to debate, and these agencies continue to frustrate efforts to redress our grievances.

    We’ll never shine a light on these roaches by allowing them to have continued control of the switch. The companies that are receiving these letters simply need to engage in a bit of civil disobedience and say “we can neither confirm nor deny that we’ve received X amount of NSLs within the last X months;” I seriously doubt they’d throw a powerful and public figure like Tim Cook in jail for so doing.

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

    • identicon
      Anonymous Coward, 14 Nov 2014 @ 10:01am

      Re: "Debate"

      I seriously doubt they’d throw a powerful and public figure like Tim Cook in jail for so doing.

      They would likely find some junior person at the company to be the sacrificial goat, and jail the for a long time.

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

  • identicon
    Anonymous Coward, 14 Nov 2014 @ 10:03am

    prosecution bait

    I have received exactly zero NSL's this year.

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

  • icon
    Anon E. Mous (profile), 14 Nov 2014 @ 10:32am

    If you ever wonder why the people do not trust law enforcement and their own government, this is it.

    This is just one instance of the U.S. government official lying to the court that has come out, but how many more have not been caught? How do we trust anything that comes from the Government and it's officials when they have shown they will lie to anyone to protect their own illegal programs.

    The U.S. Government and it's law enforcement agencies are out of control and are running amok, there is no way to trust them, their is no level playing field, no innocent before guilty, no disclosure.

    The U.S. Government has shown they will lie, cheat and deceive the courts and judges to further their programs at all costs and peoples constitutional rights and legal rights are not applicable.

    Honestly if it wasn't for organisations like the EFF and others fighting to expose what the U.S. government seeks to keep hidden, we'd never know the truth and the Government would never tell it.

    It's pretty sad that the U.S. government who proudly proclaim the U.S. Constituion to be one of the things to be proud of and the protections and rights it provides to it's citizen tramples over it every day and ignores it's duty to abide by it.

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

    • icon
      Uriel-238 (profile), 14 Nov 2014 @ 11:29am

      The government can't trust itself.

      In order to properly govern, people who make these decisions need actual data, and we've not many instances in which such decision-makers have been provided false data specifically constructed to push a specific agenda.

      And there haven't been any consequences to those who manufacture or present such data, once the truth is discovered. So this has become something of a norm: not only do our representatives legislate or decide policy based on guesses and bullshit, but they couldn't get real data if they wanted it.

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

  • identicon
    Anonymous Coward, 14 Nov 2014 @ 10:37am

    This lack of being able to trust this government runs throughout the entire system, from the very bottom in local councils, cops, the judiciary system, right on up to the very top. The whole system is now based on lies and the ignoring of what the law says as well as what the Constitution says in plain language.

    Each week some minor little right is lost. The accumulation of these little losses has now reached the era of distrust in that same system by it's citizens. Take your pick, the illegal confiscation of your property, even prior to any conviction, shows the level this has reached. You are no longer guilty till proven innocent. There is no longer any benefit of the doubt.

    Money now runs the system. There is little or absolutely no faith in what you hear through the media. You are told bald face lies continually.

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

  • identicon
    Anonymous Coward, 14 Nov 2014 @ 5:20pm

    Didn't 99.5% of these sneak and peak warrants have absolutely nothing to do with terrorism? I would be surprised if warrants are actually being issued for bulk data seizures. Then computer algorithms search that bulk data, also without a warrant.

    But of course it's all perfectly legal because the secret interpretation of the law, supposedly states it's all legal.

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

  • icon
    That One Guy (profile), 14 Nov 2014 @ 7:15pm

    Call it what it is

    That suggestion was mistaken.

    It wasn't a 'mistake', it was 'the least untruthful answer' they could think of at the time.

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

Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Use markdown for basic formatting. HTML is no longer supported.
  Save me a cookie
Follow Techdirt
Special Affiliate Offer

Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Report this ad  |  Hide Techdirt ads
Recent Stories


Email This

This feature is only available to registered users. Register or sign in to use it.