For many years we've been highlighting how the federal government (mainly the FBI) has widely abused
the "National Security Letter" (NSL) process to get information on American citizens with almost no oversight. Part of the issue is that NSLs include a complete gag order, barring recipients from telling anyone
about them. It's been very rare for anyone to challenge them, and doing so is risky in and of itself, since it involves having to break that gag order. There have been a very few examples of companies fighting back against the NSLs, and whenever we hear about it, it tends to be done by an anonymous company
, since they can't even name themselves. The only previous instance I can recall of it being known who
fought an NSL was Nicholas Merrill, the head of Calyx Internet Access, who was only able to admit
his role in fighting an NSL years later. He talked about how he'd be involved in conversations with people about the "anonymous" ISP fighting NSLs and couldn't even indicate that he was the guy being discussed in that very conversation.
The last few weeks have been quite interesting in the world of NSLs, however. As we noted, a few weeks ago, a court in California ruled that NSLs were unconstitutional
. And, now, it's come out that Google appears to be fighting an NSL
, potentially in response to that very ruling. Of course, it appears that this news of Google fighting back wasn't supposed to be public either. Bloomberg broke the story after spotting a motion
from Google that hinted strongly at what was going on. That motion was briefly available via PACER, but since the Bloomberg story came out, it has been put under seal by the court. Of course, even though Bloomberg (for reasons that escape me) chose not to release the document itself, plenty of others have gotten a copy from before it went under seal. You can see it at the link above or embedded below.
The motion itself doesn't directly reveal that much -- but does tell you just enough to show that Google is likely fighting an NSL. The document itself is not the "petition" in question, but rather a motion to be able to file a petition under seal. Ordinarily, you would expect the motion to be filed under seal as well, which is where someone messed up, letting this out. However, the motion reveals that the petition Google is seeking to file is to "set aside a legal process ... pursuant to 18 USC 3511 (a) and (b)
." That law says that an entity can petition the court to set aside a request for information, including a national security letter, "if compliance would be unreasonable, oppressive, or otherwise unlawful." It also notes that it is requesting to file this petition under seal as required by 18 USC 2709(c)(1)
, which is the part of the law about keeping NSLs secret.
Going through all of this, it strongly suggests that Google has responded to the ruling from a couple of weeks ago by pushing back against NSLs, pointing out that a court has ruled NSLs illegal, and filing a petition against at least one (and perhaps more) NSLs to let the court know that, under 3511, complying with the NSL would be "otherwise unlawful" according to that court ruling. It's worth noting that this motion and petition are before the same judge, Susan Illston, who declared the NSLs illegal in that case a few weeks ago. Unfortunately, we may never know how the court responds to the petition itself, since I imagine the results of this will be under seal as well. The court ruling from a few weeks ago declaring NSLs illegal did stay that decision pending appeal, so a court may have leeway to say that existing NSLs can proceed, but you could also see a court recognizing that it need not just allow such a rubber-stamping to move forward.
Either way, even if it was an accidental leak, it's good to see that Google is using this as an opportunity to fight back against NSLs. Hopefully, this means that other companies are doing the same thing as well.