It seems the government doesn't know where it stands when it comes to national security letters (NSLs).
National security letters are the investigative tool that the FBI uses to obtain information from companies as part of national security-related investigations. NSLs never have to be reviewed by a judge before being issued, and they almost always include gag orders that prevent the recipient from discussing the NSL. If you've been following our national security letter cases, you know that the government had to retract a statement made before the Ninth Circuit that minimized the devastating effect of these gag orders. Unfortunately, it seems that wasn't the last time the government made a misleading statement about gag orders.
In its Signals Intelligence Reform 2015 Anniversary Report, the government proudly announced to the world:
"[T]he FBI will now presumptively terminate National Security Letter nondisclosure orders at the earlier of three years after the opening of a fully predicated investigation or the investigation’s close." (emphasis added).
The FBI is in the process of formulating and drafting guidelines for the implementation of the policy described in the Report. Because this process is not yet complete, the potential applicability of the new policy to the NSLs at issue in the above-referenced appeals remains to be determined. We will advise the Court when this additional information becomes available.
The government should not be telling everyone that reforms are in place "now," when the truth is something different.
Even if this new policy was actually implemented, it would not solve the deep constitutional problems with National Security Letters. To learn more about how NSLs work and why we're fighting them, check out our FAQ.