A federal district court in San Francisco has ruled strongly in favor of our Freedom of Information Act lawsuit seeking records of how and when the FBI lifts gag orders issued with National Security Letters (NSLs). These records will provide a window into the FBI’s use of a highly secretive investigative tool that has been historically misused. They will also provide insight into the effectiveness of the USA Freedom Act, the national security reform law passed by Congress in 2015.
NSLs are a form of administrative subpoena that allows the government to obtain basic information about customers of communications providers, banks and credit agencies, and a range of other companies. The defining feature of NSLs, however, is that the FBI can issue a blanket gag order with its information request, preventing recipients from saying anything about them, including the very fact that they have received an NSL.
The FBI has issued over 500,000 NSLs since 2001, the vast majority of which contained such indefinite gag orders. As a result, the public has had little insight into the scope of the government’s use of NSLs, aside from internal reports that paint a picture of overreach and misuse. EFF and others have long argued that NSL gag orders violate the First Amendment, and we succeeded in having the statute ruled unconstitutional in 2013.
In response to these constitutional challenges, Congress included a series of reforms as part of USA Freedom which allowed the FBI to continue issuing NSLs. One provision of the law required the FBI to develop “termination procedures” to lift NSL gag orders if they were no longer necessary to protect national security or other important government interests.
If these procedures worked as Congress intended, the government should be regularly notifying companies that they could speak about the NSLs they received and publish the letters themselves. We saw this happen in a small number of cases, but these represented only a tiny fraction of the more than 500,000 letters issued since the passage of the Patriot Act in 2001. Meanwhile, we’ve also seen—in our own case and in others—that even after USA Freedom the FBI believes it can issue indefinite and even permanent gag orders.
That led us to wonder just how the FBI was implementing its termination procedures and how effective they had been, so we filed a FOIA request in late 2016. After the FBI said it had no records at all, we filed suit.
Although the FBI did eventually produce some documents, it adopted a staggering secrecy argument. It claimed that the very letters it sends to NSL recipients to tell them it is terminating a gag order—documents that by their very nature were created to be public—could allow criminals and terrorists to learn sensitive information about the FBI’s investigative techniques.
Fortunately, Judge Vince Chhabria of the Northern District of California ruled that the documents must be disclosed. He called the FBI's argument “dubious,” noting that every single one of the termination letters at issue could already be public. “[A]ny company whose nondisclosure requirement has been lifted can, by definition, disclose its receipt of the associated national security letter,” Chharbia wrote.“This is the natural result of Congress’s judgment that the use of national security letters should not be concealed from the public once concealment is no longer necessary to protect an investigation or national security, which further undermines the government’s assertion that aggregate disclosure of this information would fall within Congress’s definition of ‘disclos[ing] techniques and procedures for law enforcement investigations.’”
In other words, the FBI simply had no basis to claim secrecy in records that Congress and the Bureau itself had already determined could be made public. The court ordered the parties to agree on a schedule for releasing the NSL termination letters in the next two weeks. We’re looking forward to analyzing the documents soon.