The federal district court in San Francisco in EFF’s National Security Letter (NSL) cases has unsealed its order from last month, which denies our clients’ long-running First Amendment challenges to the NSL statute.

This is the first public decision interpreting the NSL statute since it was amended last year by the USA FREEDOM Act, and unfortunately, it’s a disappointing one. Although the court previously found the statute unconstitutional, it held that Congress successfully addressed these problems by passing USA FREEDOM.

EFF and our clients disagree with this ruling, and we will be appealing it to the United States Court of Appeals for the Ninth Circuit. 

How Did We Get Here?

NSLs are a form of government subpoena that allow the FBI to request basic subscriber information and toll billing records from wire and electronic communications providers. The NSL statute also allows the FBI to issue self-certified “non-disclosure orders” preventing recipients from even saying they have received an NSL. The self-certification means that a court does not review the FBI’s decision to send an NSL or to impose these gag orders in advance.

The government has issued hundreds of thousands of NSLs since 2001, nearly all of them accompanied by gag orders. But in spite of a documented history of abuse, NSLs have generated few legal challenges precisely because of the intimidating gag orders that accompany nearly every NSL.

EFF’s clients are two of the exceptions. We represent unnamed service providers—referred to by the court as Petitioner A and Petitioner B—who received several NSLs in 2011 and 2013 respectively. In response to an initial challenge by Petitioner A, the court in 2013 found that the NSL statute was unconstitutional because it allowed the FBI to prevent recipients from even stating that they had received an NSL.

In that 2013 decision, the court correctly recognized that because the government can silence recipients in advance, NSL gag orders are presumptively unconstitutional “prior restraints” under the First Amendment.

In order to constitutionally impose a prior restraint, the government must ensure that numerous safeguards apply, including prompt judicial review and a demonstration that a gag is actually necessary. In 2013, the court determined that the NSL statute failed on these fronts because it allowed the government to impose indefinite gags in every case, with no obligation for judicial review. Even when review did occur, the statute severely limited the court’s ability to weigh its necessity, in some cases simply forcing the court to uphold the gag based on an FBI official’s certification.   

The government appealed the 2013 ruling to the United States Court of Appeals for the Ninth Circuit, which heard argument in October 2014. But before the appeals court could issue an opinion, Congress amended the NSL statute as part of USA FREEDOM. In light of these changes, the Ninth Circuit delayed issuing a definitive ruling and sent the case back to the district court. Now that court has ruled on the amended statute, and we’re once again headed to the Ninth Circuit. Our clients have been totally prevented from speaking about these NSLs for the entire time the case has been pending, as debates over the NSL power have continued in Congress and in the public. 

What Changed?

Although USA FREEDOM introduced only superficial changes to the NSL statute, it satisfied the district court that the new NSL regime is constitutional.

The most notable change brought by USA FREEDOM is that the amended law makes official an FBI practice called “reciprocal notice,” adopted by the Bureau in response to a 2008 ruling by the Second Circuit in New York. Under the reciprocal notice procedure, the government goes to court to justify the gag order only if an NSL recipient notifies the FBI of its desire for judicial review in the first place.

But according to the Supreme Court’s decision in Freedman v. Maryland, that’s not enough. When the government imposes a prior restraint, it must bear the burden of immediately going to court and proving its necessity. Otherwise, in most cases speakers faced with the uphill battle of challenging an unconstitutional gag themselves will simply choose to comply. In the case of the new “reciprocal notice” requirement, the recipient still bears the burden of objecting to the gag order, which is enough to deter most recipients. Even when they do object, the statute does not require courts to rule promptly. As a result, the FBI’s decision to gag NSL recipients is a de facto permanent one in the vast majority of cases. The First Amendment does not allow such a censorship regime.

In its new order in our cases, the district court acknowledged that USA FREEDOM’s kludgy reciprocal notice procedure does not live up to the high First Amendment standards in Freedman, but it still called this new procedure good enough. That’s because the court agreed with the Second Circuit that NSLs are not “classic prior restraints” because they do not gag “those who customarily wish to exercise rights of free expression,” such as movie exhibitors and book publishers. This might have seemed plausible when the Second Circuit first wrote it in 2008, as it was less common for companies to speak publicly about government requests for customer information. 

But these days, after the immense public debate caused by the Snowden revelations, service providers regularly publish transparency reports about government data requests, and companies like Apple, Microsoft and Google engage in public fights against overbroad requests and gag orders. Users are very concerned about the privacy and security of their data held by these companies. And contrary to the court’s assumption, many providers—like our clients—want to talk about these requests.

But even if it were true that gagged communications providers aren’t “classic speakers,” NSLs are classic prior restraints. The First Amendment has never reserved its highest speech protections for only the most talkative—just the opposite, in fact. Prior restraints arise when the government preemptively tells someone they cannot engage in speech, which is exactly what NSL gag orders do.

The court did, however, recognize that gag orders distort public discussion of NSLs, since recipients cannot identify themselves and discuss their experiences. Both Petitioner A and Petitioner B submitted declarations describing the ways in which they were barred from this debate, particularly surrounding the passage of USA FREEDOM itself.

A Silver Lining

Yet another of the numerous ways in which the amended NSL statute remains unconstitutional is its directive that a court should uphold an NSL gag order if the court finds “reason to believe” that harm “may result” if the recipient discloses the information in the NSLs. This fails to meet the First Amendment’s requirement that prior restraints be objectively and definitely “necessary” to prevent such harm. Again, in our case, the court determined that the highly deferential “may result” language in the statute was close enough.

But when it came to applying this low bar to one of the NSLs received by our client Petitioner A, the court found that the FBI could not justify the gag order. This means that the FBI’s one-sided, secret assertions that our client must be gagged in this case have now proven to be totally unsupported. If the government does not appeal this ruling, our client will be able to identify itself after many years of being gagged. It will also be able to reveal the contents of the NSL it received in this case, marking only the second time that the public has seen an unredacted NSL.

While this isn’t the complete invalidation of the statute we’d hoped for, it is a partial vindication of our clients’ fortitude in challenging these NSLs. We hope the Ninth Circuit will reverse the rest of the district court’s disappointing ruling.

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