Often overlooked in discussions of the USA FREEDOM Act passed in June are the changes made to the National Security Letter (NSL) statute. The law addresses some of the more obvious problems with NSLs but fails, by a long shot, to bring them up to the standard required by the U.S. Constitution. Most critically, USA FREEDOM did not fix the problem of overbroad, potentially eternal gag orders or the fact that the NSL statute relegates the court to little more than a rubber stamp.

Sadly, in a ruling made public last week, the U.S. Court of Appeals for the Ninth Circuit in San Francisco used these minimal USA FREEDOM Act changes as cause for another delay in considering the constitutionality of NSLs in two of EFF’s flagship cases.

The result is that the gag orders, which have already muzzled our clients for several years, will continue into the foreseeable future. The gags have prevented our clients from participating fully in the debate around USA FREEDOM and will continue to prevent them from participating in the ongoing public debate about national security surveillance in general and NSLs in particular with the power and authority that comes from speaking as a recipient.  

While we’re extremely disappointed, we will continue to push forward to get the gags lifted, allow our heroic clients to speak freely, and seek to have the NSL statute declared unconstitutional. 

What are NSLs and How Did USA FREEDOM (Not) Change Them?

The NSL statutes allow the government, based only on the FBI’s authority, to issue a secret letter to communications service providers, including telephone and Internet services. The letter requires providers to turn over subscriber and other basic non-content information about their customers. No judge is involved.

If that weren’t bad enough, NSLs also allow the government to place a gag on the recipient providers, preventing them from telling their affected customers about the request, but also preventing them from telling the public that they’ve even received a letter. This prior restraint violates the First Amendment.

EFF’s Heroic, Unnamed Clients

EFF currently represents two service providers in First Amendment challenges to the statutes, which raise questions of the substance of the laws and also the incredibly overbroad gag provisions. One of our clients has now been gagged since 2011—over 4 years—from discussing even the fact that it received a letter; the other has been gagged for over 2 years.

EFF scored a groundbreaking victory against the unconstitutional NSLs in 2013. A federal district court here in San Francisco held that the NSL statutes were unconstitutional on several grounds, chiefly that they violate the First Amendment. The injunction was stayed pending appeal, and it seemed that the decision stood a good chance of being upheld after the appellate argument in October 2014 (audio).

But then the executive branch asked Congress to include some superficial changes in USA FREEDOM. These changes basically codify parts of a procedure the FBI was already using after a previous ruling in New York, while not bringing its actual practices to the level required by the First Amendment.

What Didn’t USA FREEDOM Do

USA FREEDOM did very little to the core of these statutes. As we argued to the Ninth Circuit after USA FREEDOM passed, the law still:

·      Creates a prior restraint on our clients that doesn’t follow the procedural protections created by the seminal Supreme Court case Freedman v. Maryland. Under Freedman, the First Amendment requires the government to seek prior judicial approval for a gag and requires a “prompt” decision by the court, a standard that has plainly been violated here by the years-long gag on our clients. While the law does require a so-called “reciprocal notice” practice—one that the government had already voluntarily adopted—even that procedure fails to meet constitutional standards. It still doesn’t require the government to seek judicial review first or limit the time frame for review. It also still gives the court very little leeway to review the government’s decision to issue a gag.

·      Allows the government to gag recipients based upon the mere assertion that a harm “may result,” a boundless, subjective term rather than a showing that the gag is objectively and definitely  “necessary” to prevent a harm.

·      Authorizes overbroad, open-ended gags, preventing even a general statement that the recipient has received an NSL. Even under USA Freedom, there is no specific provision causing the gag to expire when any threat has ended, instead punting to the government to create new procedures for review “at appropriate intervals,” a term entirely defined by the government.

·      Still allows the government to self-issue NSLs with no prior judicial review, in violation of the First and Fifth Amendments.

Even though EFF was neutral on USA FREEDOM, and even supported earlier versions, we were clear that the law did not do enough to reform the intelligence community. NSLs were one of the ways that the law fell short.  Even so, the Ninth Circuit’s decision to delay a final decision in these cases is especially disappointing to us and to our clients. After years of intense litigation, our clients remain under an unconstitutional gag and, in a turn of events only Kafka could love, they were unable to participate in a meaningful way in the Congressional debate about whether they should be gagged. Their ongoing inability to speak despite congressional action is a testament to the necessity of applying the Constitution and ensuring speedy judicial review. Speedy or not, we’ll fight on.