Appeal court rules FBI national security letter gagging orders should remain in place
Anyone subject to secret surveillance by the FBI through access to their private data remains unentitled to be told about the related national security letters (NSLs). The 9th US Circuit Court of Appeals in San Francisco ruled that existing gagging orders that prevent companies from advising people about NSLs relating to them do not violate the First Amendment.
A case had been brought to court by the Electronic Frontier Foundation on behalf of Cloudfare and CREDO Mobile that challenged the legitimacy of the gagging orders. EFF won its case back in 2013, but subsequent changes to the law, coupled with the appeal court ruling, means that companies are still unable to inform customers about the existence of national security letters relating to their accounts.
There have been various attempts to increase the transparency of FBI's issuing of NSLs, but this has resulted in just a handful of the letters being published. There has been great concern about the use of NSLs which the subjects cannot be warned about because there is not only no need for a judge's signature to OK their use, and the gagging orders mean that there is no scope to question or challenge them.
In its latest ruling, the Court of Appeal says:
We conclude that § 2709(c)’s nondisclosure requirement imposes a content-based restriction that is subject to, and withstands, strict scrutiny. We further hold that, assuming the nondisclosure requirement is the type of prior restraint for which the Freedman procedural safeguards are required, the NSL law provides those safeguards. The nondisclosure requirement in the NSL law therefore does not run afoul of the First Amendment.
The EFF has not said for certain whether it will be taking the case further, but a staff attorney for the organization said to Ars Technica: "Our position, in general, is when an ISP gets an NSL, they should tell the user so that they can contest that request."
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