EFF and ACLU filed an amicus brief last week in a case that may finally force the Ninth Circuit Court of Appeals to resolve one of the most serious problems with National Security Letters: NSL gag orders that have no fixed end date.
Similar to subpoenas, NSLs are information requests issued by the FBI and often sent to communication companies seeking customer data. But NSLs have a serious problem: they almost always include gag orders, making the entire process secret.
These secret government orders are ripe for abuse—especially when they don’t end. Under the First Amendment, the government cannot permanently silence speech in the name of national security. That’s because every threat to national security must end at some point, just as every secret must at some point shed the need for secrecy. But the NSL law allows just such indefinite gag orders. And in the last NSL case that came before the Ninth Circuit—brought by EFF on behalf of the providers CREDO and Cloudflare—the court dodged this issue.
The new case involves an unnamed company that received three NSLs from the FBI in 2011 requiring the company to turn over information about its customers. As with nearly all of the hundreds of thousands of NSLs issued since 2001, these NSLs were accompanied by gag orders that prevented the company from saying anything about the NSLs, including the fact that it had received them, unless and until the FBI told it otherwise. In 2018, the company asked the FBI to have a court review the need for the gags, but the U.S. District Court for the Southern District of California upheld this “unless and until” standard. Now, the company has appealed that decision to the Ninth Circuit, arguing that indefinite gag orders violate the First Amendment.
EFF is supportive of the unnamed company’s arguments. In fact, we have been waiting for our opportunity to make a nearly identical case on behalf of our own clients. For years, EFF has represented the service providers CREDO and Cloudflare in their own challenges to the NSL law. Along the way, we had the statute declared unconstitutional, only to have it amended by Congress and then upheld in 2017 by the Ninth Circuit. In response to our arguments that indefinite gag orders were unconstitutional, the appeals court wrote that lower courts reviewing these “nondisclosure requirements” are constitutionally “bound to ensure that the nondisclosure requirement does not remain in place longer than is necessary to serve the government's compelling interest.”
Because we disagreed with the Ninth Circuit’s ruling upholding the NSL statute as constitutional, we asked the court to reconsider. Our client’s petition has been pending for more than eighteen months, and the delay is why we haven’t asked a district court to follow the Ninth Circuit’s command to set an end date to the gag orders so that they don’t remain in place “longer than is necessary to serve the government’s compelling interest.”
But as our new amicus brief makes clear, our clients and the new unnamed company aren’t the only ones in this situation. Hundreds or even thousands of NSL recipients are subject to unconstitutional indefinite gag orders, depriving the public of a large swath of information about how the government uses NSLs. (EFF also has an ongoing Freedom of Information Act case to learn some of this information.)
In this case, the Ninth Circuit has the opportunity to fix one of the problems with NSLs and its ruling in our case. Hopefully the court will take the first step toward ending endless gag orders.