Federal Court Finally Says That Gag Order On 11-Year-Old National Security Letter Should Be Lifted Already

from the big-win dept

Five years ago, we wrote about a pretty big victory against National Security Letters (NSLs), which the government has long used to get around the 4th Amendment, demanding information from companies, complete with a perpetual gag order. In 2007, an anonymous ISP owner fought back, speaking out against the whole gag order thing, but not even being able to say what ISP he was associated with, because of that gag order. In 2010, Nicholas Merrill, of Calyx Internet Access, was finally able to admit that he was the one fighting the gag order — after reaching an agreement with the government (and that was after a number of trips back and forth between the district and appeals courts). Now, five years later, a federal court has finally ruled that the gag order, which was issued back in 2004, should be lifted, because the government has no “good reason” for keeping it in place and keeping the gag order would violate the First Amendment. You can read the redacted order here, which is an interesting read. Basically, a permanent gag order doesn’t really fit with that whole First Amendment thing we have here in the US — but the court prefers to focus on whether or not there’s any reason to keep the order in place now.

There’s a lot of procedural history here (which explains why it took this long for a ruling, but…). It turns out that in 2014, Merrill and the DOJ reached a further “agreement” that allowed Merrill to talk more about the NSL, but said he could still not discuss an attachment that explained what kinds of records the government sought. This latest part of the lawsuit is about that last remaining part of the gag order. And the court is not impressed by it at all.

Here, the Government has not demonstrated a good reason to expect that public disclosure of the parts of the Attachment that remain confidential would risk one of these enumerated harms; nor has the Government provided the Court with some basis to assure itself that the link between disclosure and risk of harm is substantial. The Government’s justifications might constitute “good” reasons if the information contained in the Attachment that is still redacted were not, at least in substance even if not in the precise form, already disclosed by government divisions and agencies, and thus known to the public. Here, publicly-available government documents provide substantially similar information as that set forth in the Attachment. For that reason, the Court is not persuaded that it matters that these other documents were not disclosed by the FBI itself rather than by other government agencies, and that they would hold significant weight for a potential target of a national security investigation in ascertaining whether the FBI would gather such information through an NSL. The documents referred to were prepared and published by various government divisions discussing the FBI’ s authority to issue NSLs, the types of materials the FBI seeks, and how to draft NSL requests.
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Indeed, one of these documents is a publicly-available Department of Justice Office of Legal Education manual that provides a sample attachment that encapsulates much of the redacted-information in the Attachment here in dispute.…

[….]

The Government contends that if the parts of the Attachment that remain secret are disclosed, potential targets could change their behavior to evade law enforcement. But those targets can already learn, based on publicly available infonnation, that the FBI could obtain such information through NSLs.

In the end, the court says the gag order makes no sense.

… the Court finds that the Government has not demonstrated a good reason to believe that potential targets of national security investigations will change their behavior to evade detection, or that disclosure of the Attachment in its entirety would create a substantial risk of one of the statutorily enumerated harms.

And then there’s the whole First Amendment thing. The court notes that if it accepted the DOJ’s arguments, the First Amendment would have an issue with that:

If the Court were to find instead that the Government has met its burden of showing a good reason for nondisclosure here, could Merrill ever overcome such a showing? Under the Government’s reasoning, the Court sees only two such hypothetical circumstances in which Merrill could prevail: a world in which no threat of terrorism exists, or a world in which the FBI, acting on its own accord and its own time, decides to disclose the contents of the Attachment. Such a result implicates serious issues, both with respect to the First Amendment and accountability of the government to the people. As Judge Cardamone warned in his concurrence in Doe v. Gonzales, “a ban on speech and a shroud of secrecy in perpetuity are antithetical to democratic concepts and do not fit comfortably with the fundamental rights guaranteed American citizens,” and such unending secrecy could “serve as a cover for possible official misconduct and/or incompetence.”

But the court, unfortunately, refuses to take things one step further, in saying that the gag order itself violated his First Amendment rights. Instead, it focuses just one whether or not the government still has a “good reason” to keep the gag order in place. Saying that it no longer does, it says it has no need to address the more constitutional question of whether or not the gag order itself violated Merrill’s rights.

Also, somewhat amusingly, because the court is ordering the DOJ to lift the gag order, but because it’s technically still in place, you get some odd redactions in the ruling, where the government is pointing out why certain things should not be redacted… but they still are, likely because the gag order is still in place, even as the court has ordered it lifted. There are a lot of these kinds of examples, but here’s a shorter one:

And another longer one:
Oh, and then there’s this glorious footnote: The court is not persuaded, but everything is blacked out anyway. Because that’s how these things work. In fact, Merrill remains gagged for 90 days, and only after that can he actually reveal what the FBI asked for 11 years ago.

Filed Under: doj, fbi, first amendment, free speech, gag order, national security letters, nicholas merrill, nsl, nsls, redactions
Companies: calyx