by Tim Cushing

Filed Under:
doj, fbi, first amendment, gag order, nsl

credo mobile, eff

More National Security Letters Made Public After Government Drops Its Attempt To Keep Its Gag Orders In Place

from the most-transparent-administration-still-all-about-forced-transparency dept

Thanks to the EFF's efforts, another set of National Security Letters have been published and their recipient freed to discuss them. CREDO Mobile received two NSLs in 2013 -- both accompanied with the usual indefinite gag order. The NSLs [PDF 1] [PDF 2] requested a wealth of data on three of CREDO's customers -- including all call records, financial information (credit cards used, etc.), and personal information (name, address, etc.) -- dating back to April 2008.

CREDO challenged the constitutionality of the indefinite gag orders as well as the constitutionality of the NSLs themselves.

“A founding principle of CREDO is to fight for progressive causes we believe in, and we believe that NSLs are unconstitutional. These letters, and the gag orders that came with them, infringed our free speech rights, blocking us from talking to our members about them or discussing our experience while lawmakers debated NSL reform,” said Ray Morris, CREDO CEO. “We were proud to fight these NSLs all these years, and now we are proud to publish the letters and take full part in the ensuing debate.”

CREDO's challenge to the gag order was upheld [PDF] by a federal judge in March, who struck it down when the FBI failed to show a need for the continued secrecy. This decision was held pending the FBI's appeal, but the government apparently decided this wasn't a battle it wanted to fight and dropped its appeal of the court's order.

The government's decision to drop the appeal highlights one of the (many) problems with NSLs. These are self-issued administrative orders subject to very little, if any, oversight. The FBI can issue as many of these as it wants without ever having to get a judge involved. Every one of these arrives with an indefinite gag order attached, forcing recipients to lawyer up if they want to challenge the government's demands for secrecy.

The government clearly felt it couldn't demonstrate why this gag order should still be in place. But the government doesn't have to justify its demands for secrecy at the point the NSL is issued. It only needs to do this if challenged in court. While some judges have expressed an interest in periodic reviews of NSLs to determine the need for ongoing secrecy, these conclusions are the exception rather than the rule.

That judges are the ones making this determination is another part of the problem. In response to the USA Freedom Act, the DOJ instituted a policy requiring a "periodic" review of issued NSLs. Unfortunately, that's all it does. There's no definition attached to "periodic," which means the review could happen every few years… or never.

The constitutionality of the orders themselves should still be actively challenged. While much of what is sought with these falls under the very generous definition of "third party records," the lack of any oversight or judicial review makes these the go-to tool for the FBI -- which has been known to issue NSLs when its warrant requests are turned down by federal courts. Throw an indefinite gag order on it, and the FBI can pretty much ensure complete compliance from recipients, whose only option is to fight an often-futile legal battle against the government.

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  • identicon
    Anonymous Coward, 2 Dec 2016 @ 12:25pm


    "A founding principle of CREDO is to fight for progressive causes we believe in, and we believe that NSLs are unconstitutional."

    How is fighting for Constitutional rights a fucking "progressive" cause?

    While I applaud EFF and CREDO efforts here, that is some bullshit spin right there!

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

    • icon
      DannyB (profile), 2 Dec 2016 @ 12:45pm

      Re: Huh?

      Fighting for constitutional rights shouldn't seem like a progressive cause.

      But it does seem that way because we've slid so far downhill.

      Whether we can recover the rights and freedoms we've lost remains to be seen.

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

      • identicon
        Anonymous Coward, 2 Dec 2016 @ 12:51pm

        Re: Re: Huh?

        it only seems that way from a biased perspective.

        It has been my observation that both progressives and traditional liberals and conservative types have all participated in the destruction of the Constitution.

        The key differences are that they each pick different areas of the constitution to attack and hypocritically bitch about the damages the others are causing while damaging a different area themselves.

        Due to the nature of the Constitution, you either stand for 100% of it or you don't stand for any of it.

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

        • identicon
          Thad, 2 Dec 2016 @ 2:35pm

          Re: Re: Re: Huh?

          Due to the nature of the Constitution, you either stand for 100% of it or you don't stand for any of it.

          Perhaps what you meant to say here is that people who support the Constitution support it equally, for everybody in all cases, rather than only for people they agree with? Because I agree with that.

          I don't agree at all with the notion that you can't support some parts of the Constitution and not others, though; that's absurd. What about First Amendment advocates who opposed slavery? What about Fourth Amendment advocates who opposed prohibition? What about Second Amendment advocates who want to abolish the federal income tax?

          Everybody who's ever supported any constitutional amendment at any time in history has, by definition, disagreed with something in the Constitution (or, alternately, disagreed with something not being in the Constitution).

          And that's without getting into the practical matter that interpretations of the Constitution have changed. Supreme Court rulings on the First Amendment have supported much broader free speech rights over the past 50 years than they did at the turn of the twentieth century. Ultimately, the Constitution is subject to interpretation, and the only interpretation that matters is the Supreme Court's.

          And I'm sure you can name at least one Supreme Court ruling that interpreted the Constitution in a way you personally disagree with.

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

        • icon
          Groaker (profile), 2 Dec 2016 @ 5:16pm

          Re: Re: Re: Huh?

          I consider myself a strict constructionist. But there were/are some major difficulties with some parts of the Constitution that needed/need addressing.

          Slavery, women's suffrage, the truly screwed up language of the 2nd Amendment. The failure to provide real protection for citizens from governmental atrocities, or significant punishment for governmental authorities who do commit crimes. A failure of providing a mechanism for addressing grievances in a reasonable time.

          These are but a very few of the failures of the Constitution. There are parts of it which embody some of the most wonderful concepts ever conceived of by man. But what value are they when they are unenforceable?

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

      • identicon
        Anonymous Coward, 2 Dec 2016 @ 12:59pm

        Re: Re: Huh?

        Oh, and to add, progressives tend to be pro Big government which is typically contrary to Liberty and the Constitution for the very obvious reasons of...

        the bigger the government, the smaller the citizen.
        a government big enough to give you anything, is big enough to take from you EVERYTHING.
        the natural flow of governments is to tyranny, and changing the laws and it agencies for light and transient causes, OR placing too much power in the executive branches will prove that they will not long be friends of liberty!

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

        • icon
          Niall (profile), 5 Dec 2016 @ 7:01am

          Re: Re: Re: Huh?

          What you are talking about is Authoritarianism, and it can be reached from the Left or Right. When I was a child, a mere 30-odd years after WW2, it was very obvious to me that there was very little functional difference to the man on the street between living under Hitler, or under Stalin. (Although I'm a lot more aware of nuanced differences now.)

          The Right is as capable of doing 'big government' as the Left. It just likes bombs and guns and peering into bedrooms/panties and enforcing religions of choice. The Left can get over-protective, over-sensitive, and just as prescriptive.

          In both cases, they involve far too much government trying to prop up its own power, stifle dissent, and waste money on non-democratic wastage.

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

          • identicon
            Wendy Cockcroft, 6 Dec 2016 @ 5:45am

            Re: Re: Re: Re: Huh?

            Indeed. Partisanship disguises the problem of authoritarianism, it does nothing to resolve it. Let's bash it where we find it.

            And remember, people, true liberalism means freedom, not "stoned hippies making V signs and advocating for marriage with their pets."

            It's the above (fairly recent) idea of liberalism that gave us Libertarians, who are basically classical liberals. Assuming I'm right, the opposite of that is authoritarianism, which can be found in any part of the political spectrum depending on one's convictions. I'm opposed to authoritarianism on principle, and therefore tend to caucus with the classical liberals even though I don't agree with them on everything.

            The Constitution is anti-authoritarian in essence precisely because it sets limits on what government can do to us and what we can do to each other.

            Think about what that means.

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

            • icon
              Groaker (profile), 17 Dec 2016 @ 3:33pm

              Re: Re: Re: Re: Re: Huh?

              Right you are. Left and Right (Liberal and Conservative) are as meaningful as sports team names, or red and blue teams in steal the flag. They serve as poles of attraction to which individuals are drawn by assignment or popularity. Once attracted to a pole, the camouflage required to remain in that locale means adopting a "platform." How can anyone in their right mind take on the talking points in any such doctrine? Even the Constitution has its flaws.

              I was once described as a libertarian, socialist, strict constructionist. It is an appellation that I am proud of, in that it means that I think for myself rather than follow a butting order of bovines around.

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

  • identicon
    Anonymous Coward, 2 Dec 2016 @ 12:45pm

    I'm sorry, your honor, our network was hacked...

    ...and it appears that the hackers stole and then uploaded to the Internet that National Security Letter that you and the FBI had prohibited us from revealing. If we can only track down these horrible monsters, we could punish them for not following your indefensible, inexcusable, unjustifiable, unpardonable, gratuitous, unreasonable, unnecessary, insupportable, unacceptable, unwarranted, flawed, untenable, unsustainable order. Believe me I'm as angry as you are. (But likely for a different reason.)

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

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