Nondisclosure or gag provisions of National Security Letters “significantly infringe upon speech regarding controversial government powers,” a district court in California ruled on March 15. The provisions were found to violate the First Amendment and “separation of powers principles.”
National Security Letters (NSLs) are issued by the Federal Bureau of Investigation (FBI). They are issued to telecommunication companies, financial institutions, credit companies, etc, without court approval and, as the American Civil Liberties Union (ACLU) describes, make it possible for the FBI to compile “vast dossiers about innocent people and obtain sensitive information such as the web sites a person visits, a list of email addresses with which a person has corresponded, or even unmask the identity of a person who has posted anonymous speech on a political website.”
The authority to do this was granted under the guise of protecting national security by Congress in the PATRIOT Act.
Even more totalitarian than what the FBI actually does with information it obtains without court approval is the fact that NSLs have had “gag” provisions that require recipients to be silent. The company being asked to provide records is supposed to not talk about NSL requests publicly. The person whose data is being mined by the FBI is supposed to be silent as well.
In a lawsuit brought by the Electronic Frontier Foundation (EFF) on behalf of an “unnamed telecommunications company,” a US district court in California ruled the gag provisions were unconstitutional.
The court determined NSLs are not “narrowly tailored on their face, since they apply, without distinction, to both the content of the NSLs and to the very fact of having received one.” The government claims prohibiting recipients from talking about NSLs is “necessary to serve national security in ongoing investigations,” but the government “has not shown that it is generally necessary to prohibit recipients from disclosing the mere fact of their receipt of NSLs.”
The statute does not distinguish – or allow the FBI to distinguish – between a prohibition on disclosing mere receipt of an NSL and disclosing the underlying contents. The statute contains a blanket prohibition: when the FBI provides the required certification, recipients cannot publicly disclose the receipt. A review of the FBI’s use of NSLs discloses that the FBI issued nondisclosure orders for 97% of the NSLs it had issued. This pervasive use of nondisclosure orders, coupled with the government’s failure to demonstrate that a blanket prohibition on recipients’ ability to disclose the mere fact of receipt of an NSL is necessary to serve the compelling need of national security, creates too large a danger that speech is being unnecessarily restricted. [emphasis added]
In acknowledging the unnecessary restriction on speech, the court explicitly highlighted how this is impacting public policy by ensuring recipients cannot join “continuing public debate over NSLs.” The court noted NSLs had “spawned a series of Congressional hearings, academic commentary and press coverage.” The provisions effectively ensure recipients cannot participate in this debate. “Indeed, at oral argument, Petitioner was adamant about its desire to speak publicly about the fact that it received the NSL at issue to further inform the ongoing public debate,” the Court noted.
The prohibition on speech continues indefinitely unless the recipient files a petition asking a court to “modify or set aside the nondisclosure order.” To this, the court determined this is,”In essence, a permanent ban on speech absent the rare recipient who has the resources and motivation to hire counsel and affirmatively seek review by a district court.” It added, “Review provisions are overbroad because they ensure that nondisclosure continues longer than necessary to serve the national security interests at stake.”
The court found the provisions of the statute have essentially been written so the courts cannot have any role in reviewing NSL practices:
As written, the statute expressly limits a court’s powers to modify or set aside a nondisclosure order to situations where there is “no reason to believe” that disclosure “may” lead to an enumerated harm; and if a specified official has certified that such a harm “may occur, that determination is “conclusive.” The statute’s intent – to circumscribe a court’s ability to modify or set aside nondisclosure NSLs unless the essentially insurmountable standard “no reason to believe” that a harm “may” result is satisfied – is incompatible with the court’s duty to searchingly test restrictions on speech.”
Essentially, Congress, in service to national security or intelligence agencies, crafted a process where citizens cannot go to the court for defense from this sheer abuse of power.
The Second Circuit Court found in Doe v. Mukasey that the fact that the provisions did not require the government to initiate judicial review was unconstitutional. The court had suggested multiple ways the Congress could address “constitutional infirmities” or ways in which the statute infringed upon civil liberties. However, “In amending and reenacting the statute as it did, Congress was concerned with giving the government the broadest powers possible to issue NSL nondisclosure orders and preclude searching judicial review of the same.” (The court is likely referring to changes Congress made to the PATRIOT Act in 2006 before the act was reauthorized.)
NSL “gag” provisions must be “narrowly tailored to serve” compelling national security interest “without unduly burdening speech,” the court concluded. It enjoined the government from issuing NSLs under a provision at issue or from “enforcing a nondisclosure provision in any other case.” Acknowledging the “significant constitutional and national security issues at stake,” the ruling was stayed for 90 days so the government could file an appeal. (In Doe v. Mukasey, the judge did the same.)
Since Congress gave the FBI this power, their use for surveillance has risen astronomically. According to the Justice Department’s own data, “In 2010, the FBI more than doubled the number of U.S. persons it surveilled with NSLs, requesting 24,287 NSLs on 14,212 people, up from 14,788 NSLs on 6,114 people the year before.”
NSLs have been clearly abused. In 2007, the New York Times reported the FBI had sought details not only on the person who was the target of the issued NSL but also that person’s “community of interest.” The FBI analyzed “phone-call patterns of the associates of Americans who had come under suspicion.” They went on fishing expeditions and engaged in clear unrestrained illegality.
Secrecy around NSLs has been immense. Only recently did Google begin to post data about NSL requests in its Transparency Report. But, Google decided to report ranges instead of exact numbers because the FBI, Justice Department and other agencies thought “exact numbers might reveal information about investigations.”
Finally, it is worth noting that in prior lawsuits judges have strongly rejected the nature of the gag provisions, which give the FBI extraordinary power.
The Second Circuit Court in their ruling on Doe v. Mukasey in 2006:
…The government’s urging that an endless investigation leads logically to an endless ban on speech flies in the face of human knowledge and common sense: witnesses disappear, plans change or are completed, cases are closed, investigations terminate. Further, 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. Unending secrecy of actions taken by government officials may also serve as a cover for possible official misconduct and/or incompetence… [emphasis added]
Judge Victor Marrero of the US District Court of the Southern District of New York found in Doe v. Mukasey:
Because neither the statute, nor an NSL, nor the FBI agents dealing with the recipient say as much, all but the most mettlesome and undaunted NSL recipients would consider themselves effectively barred from consulting an attorney or anyone else who might advise them otherwise, as well as bound, to absolute silence about the very existence of the NSL. Furthermore, it is doubtful that an NSL recipient, not necessarily a lawyer, would be willing to undertake any creative exercises in statutory construction to somehow reach the Government’s proposed reading of § 2709, especially because that construction is not apparent from the plain language of the statute, the NSL itself, or accompanying government communications, and any penalties for non-compliance or disclosure are also unspecified in the NSL or in the statute. For the reasonable NSL recipient confronted with the NSL’s mandatory language and the FBI’s conduct related to the NSL, resistance is not a viable option. [emphasis added]
Overhauling or doing away with national security letters is long overdue. They grant the Surveillance State immense powers to not only violate a person’s free speech rights but also privacy. Congress is a complicit enabler in allowing the FBI to continue to employ this power without proper constraints that protect civil liberties. The courts must step in and intervene. On appeal, a judge should offer a decision that induces the Congress to do something more than serve the national security state apparatuses of this country.
Also, the outcome might lead those who have been issued NSLs to contemplate civil disobedience. Past cases indicate the courts understand the Congress and Executive Branch have not come close to balancing national security interests with citizens’ civil liberties. They have claimed unilateral power to do whatever they please to citizens for whatever purpose in whatever investigation they might be engaged in that is likely rife with misconduct on the part of the FBI and Justice Department.
It may be time to speak up and join the debate. At least in this ruling, the judges recognize that citizens should not be told by their government that they are not allowed to discuss openly that they are being investigated intrusively by their government.