When Congress passed the USA FREEDOM Act in 2015 as part of the country’s reckoning with the post-9/11 surveillance state, comparably little attention was paid to amendments the law made to national security letters (NSLs). At the time, EFF said that these changes stopped far short of the NSL reform we’d hoped for, and we predicted only superficial improvements in how the FBI issues NSLs. In 2016, we saw how these changes played out in real cases—some involving EFF clients—and it looks as if our assessment was appropriately measured. Overall, the revised law has allowed for the FBI to engage in selective transparency about NSLs on a modest scale, all the while seeking to expand the scope of NSLs and stand in the way of independent oversight. In 2016, EFF notched a few victories on behalf of our clients, but we’re still looking to achieve total victory and have the NSL statute declared unconstitutional.
First Amendment Horseshoes
The passage of USA FREEDOM in 2015 made for considerable uncertainty in EFF’s long-running constitutional challenge to the NSL statute—in our three consolidated cases, we were in the midst of defending a 2013 district court ruling that the previous version of the law failed to meet the First Amendment. Rather than deciding the appeal, the Ninth Circuit sent the cases back to the district court, which issued a disappointing ruling this March.
Unfortunately, Judge Illston of the federal district court for the Northern District of California found that the changes to the NSL statute introduced by USA FREEDOM were sufficient to remedy the constitutional defects she identified in her 2013 ruling. In particular, although she previously determined that the First Amendment required the FBI to ask a court to review NSL gag orders in all cases, Judge Illston determined that the new “reciprocal notice” procedure—by which the FBI need only go to court if an NSL recipient asks for it—was close enough.
But as the saying goes, “close only counts in horseshoes and hand grenades,” and the First Amendment requires more. Similarly, the court found that although the revised statute didn’t meet the high standards of the First Amendment, it didn’t need to do so because NSL recipients aren’t the kind of “customary speakers” who receive full First Amendment protections.
We think the district court’s ruling was seriously misguided, as demonstrated by the desire of so many service providers to talk about NSLs and publish the ones they’ve received. (More on that below.) We’ve appealed Judge Illston’s ruling back to the Ninth Circuit, where briefing is ongoing.
A silver lining was the court’s determination that in one of these three consolidated cases, the FBI had failed to demonstrate why our client should remain gagged. As a result, in November CREDO Mobile was able to reveal that it had been fighting two NSLs it received back in 2013.
Sticking Up to NSLs with a Little Help from Our Friends
Companies like CREDO deserve serious praise for choosing to stick up for their users when faced with intimidating surveillance requests like NSLs. It’s not always an easy road: CREDO had to stay silent about its fight against these NSLs for many years, and it was forced to self-censor even as Congress debated and passed USA FREEDOM. But we wouldn’t be able to do our work without companies taking this kind of stand, and we hope others will follow suit.
Another organization that did just that in 2016 was the Internet Archive, which received an NSL in August. Represented by EFF, the Archive pushed back on the FBI’s request, which ignored the protection from NSLs that the law gives to libraries. In addition, we noticed that the NSL sent to the Archive failed to mention that USA FREEDOM had changed how often NSL recipients could bring a challenge. That’s concerning exactly because these challenges are so rare. In response, the FBI lifted the gag on the Archive and agreed to send revised NSLs to everyone it had misinformed, potentially thousands of recipients. We’re proud of this victory and were glad to help the Archive in its mission to protect reader privacy and access to the world’s knowledge.
Selective Transparency in Action
USA FREEDOM requires the FBI to periodically review NSLs to determine whether accompanying gag orders need to stay in place. As we’ve argued in our constitutional challenges, this does little to stop the FBI from issuing indefinite and overbroad gag orders in the first place, and it is no substitute for independent review of NSLs by a court. Even the limited procedures put in place by the FBI to do this review have, in the words of a D.C. district court opinion issued in August, “several large loopholes.”
Nevertheless, the FBI’s reviews allowed two notable recipients to publish a handful of NSLs in 2016. In June, Yahoo became the first company to publish three NSLs thanks to the USA FREEDOM-mandated review, and Google followed with eight more in December.
Nice as it is to see these individual disclosures, we should remember that the FBI unilaterally controls the decision to remove these gags and appears to be doing so in very small dribs and drabs. By comparison, the Bureau has issued hundreds of thousands of NSLs in the last 15 years, so the publication of ten or twenty is a very narrow slice indeed.
There are other areas where USA FREEDOM left the FBI’s secrecy untouched. Most notorious are Department of Justice procedures for using NSLs in investigations involving journalists, including to identify confidential sources based on communications metadata. Despite a Freedom of Information Act lawsuit brought by the Freedom of the Press Foundation, it took a leak published by the Intercept in June for the public to see these guidelines, which unsurprisingly do little to protect journalist-source relationships.
Legislative Fight in 2017
Finally, even as EFF’s constitutional challenge makes its way through the appeals process, there’s a worrying battle looming as the FBI seeks to actually expand the kinds of information it can obtain with an NSL. Several times over the summer, the DOJ and FBI attempted to include a legislative amendment that would allow the government to issue NSLs for Internet records including browsing history and email headers, known as electronic communication transactional records, or ECTRs. Those proposals failed to advance, but we’ll be watching closely to see if they resurface with a new Congress and administration in 2017. Needless to say, expanding this secretive power to include even more revealing information is not the way to go. We’ll fight it tooth and nail.
This article is part of our Year In Review series. Read other articles about the fight for digital rights in 2016.