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DOJ Admits False Statement to 9th Circuit Panel About Domestic Spying Gag Orders

SAN FRANICSCO (CN) - The Department of Justice admitted to misleading the 9th Circuit about controversial "National Security Letters" tied to domestic spying, a newly unsealed letter shows.

Telecommunications companies receive such letters when the FBI makes demands upon them for information on their customers. The letters, abbreviated as NSLs, include gag orders that make the companies keep them confidential, at risk of prison time.

Though U.S. District Judge Susan Illston found the letters facially unconstitutional and ordered the government to stop issuing them, she stayed her ruling pending the 9th Circuit appeal.

At a hearing before a three-judge panel of the federal appeals court last month, government lawyers averred that telecommunications companies could disclose and publicly "discuss the quality" of specific NSLs.

Late Wednesday the 9th Circuit unsealed a Nov. 6 letter from Justice Department attorney Jonathan Levy admitting, "That suggestion was mistaken."

"We regret this inadvertent inaccuracy and apologize for any confusion that may have been caused," Levy continued.

Lawyers for companies that had received the NSLs brought the erroneous statement to the government's attention, according to the letter.

Levy called it an "inadvertent misstatement by government counsel during the rebuttal portion of the argument," adding that the letter was intended to "correct that error."

At oral argument, the government had argued that the national-security letters did not impede public debate over government intrusion into the lives of private citizens using electronic surveillance.

But companies forced to comply with the program say they have been largely kept out of that conversation because the gag orders accompanying the NSLs forbid them from even telling their customers that they have received them.

An unidentified company has since sued the government over the constitutional authority of an NSL it received in 2011.

The 9th Circuit has not yet ruled on the case.

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