SAN FRANCISCO (CN) – The Department of Justice must unmask the names of companies cleared to disclose details of the FBI’s warrantless demands for customers’ private information, a federal judge ruled Tuesday.
U.S. District Judge Vince Chhabria found the government failed to show how revealing the names of companies freed from gag orders that accompany national security letters (NSLs), or secret government demands for customer records, would harm national security.
Chhabria rejected arguments that releasing “this seemingly stale and harmless information” would help criminals avoid FBI detection.
“In a world where technology and communication methods are changing rapidly, there’s no basis for assuming that a tiny sampling of decisions the FBI made several years prior will shed meaningful light on the decisions it’s making today,” Chhabria wrote in his 3-page ruling.
The Electronic Frontier Foundation (EFF), a digital civil liberties advocacy group, sued the government in June 2017 for failing to hand over records requested in a Freedom of Information Act (FOIA) request.
EFF attorney Aaron Mackey said this information will help shed light on whether the process Congress created in 2015 to improve transparency and ensure periodic reviews of gag orders is working as intended.
“We look forward to using the information that was withheld to better inform Congress and the public and help make our case on why more reforms are needed,” Mackey said.
Between 2015 and 2017, the government issued more than 37,000 national security letters seeking customer records from telecom companies. During that same period, it issued 750 letters lifting gag orders. After the FOIA suit was filed, the government released those 750 letters but blacked out the names of companies who were freed from gag orders.
Chhabria found no support for the argument that identifying those companies will imperil national security, especially since those firms were already given permission to publicly disclose details including the dates of requests, targets of surveillance and whether the requested information was provided to the government.
The use of NSL gag orders has been the subject of extensive debate and legal challenges for years. In 2013, a federal judge declared the use of gag orders unconstitutional. That decision was later reversed after Congress amended the process for reviewing gag orders in 2015.
The Ninth Circuit then upheld the use of nondisclosure directives in 2016, finding the reformed process for reviewing gag orders withstood the “strict scrutiny” requirement for prior restraints on speech. A request for an en banc rehearing in that case is still pending.
Under FBI procedures adopted in line with the USA Freedom Act of 2015, the bureau must review the need to keep gag orders in place at three intervals: when each letter is issued, three years after each issuance, and when an investigation is closed.
Despite those reforms, Mackey and other critics say the policy still allows the FBI to keep the gag orders in place and muzzle companies from speaking about the warrantless directives permanently.
“The fundamental problem with these gag orders that accompany national security letters is that they use the power of the government to silence companies from telling their customers and the world that they are subject to surveillance,” Mackey said.
A U.S. Justice Department spokeswoman declined to comment on the ruling.