Judge Doubts FBI’s Reasons for Hiding Gag Order Records

SAN FRANCISCO (CN) – A federal judge on Thursday doubted the government’s reasons for hiding the names of companies allowed to disclose that federal investigators made them turn over customers’ information without a warrant.

“I simply do not understand your argument for why you should be able to redact the names of these companies,” U.S. District Judge Vince Chhabria told a U.S. government attorney in court Thursday.

The Justice Department is fighting a lawsuit demanding a list of internet and telecom companies freed from gag orders issued with national security letters (NSLs). The letters are secret government demands directing companies to hand over data on private citizens for national security reasons and without court review.

In 2013, a federal judge declared the use of gag orders with national security letters unconstitutional, but Congress passed a law in 2015 creating new requirements for periodically reviewing the non-disclosure directives. With those changes, the Ninth Circuit found last year that the use of gag orders for this surveillance tool does not violate the First Amendment. A request for an en banc rehearing in that case is still pending.

In court on Thursday, Justice Department lawyer Julia Heiman argued that unmasking companies who were cleared to talk about receiving the letters would reveal sensitive information about law enforcement techniques.

“What’s revealing about aggregating this information – more than 700 incidents – is it shows which companies have received more or less NSLs,” Heiman said.

Chhabria rejected that argument, noting the list would only show how many gag orders were dissolved for each company, not how many demands for customer data each received.

“What possible value could that have to anybody in terms of providing a window into law enforcement techniques?” the judge asked.

Hieman insisted the government has other compelling reasons to prevent the disclosure, but said she could not share them in public.

Chhabria granted her request to submit a declaration under seal, but warned that he would unseal it if he found no compelling reason to keep it secret.

“I’m highly skeptical that it’s going to help their cause, but maybe there’s something I haven’t thought about,” Chhabria said.

The Electronic Frontier Foundation, a civil liberties watchdog, sued the government to obtain the gag order records in June 2017. EFF is also seeking guidance documents, memos and other records on the FBI’s procedures for adhering to the new requirements for national security letters.

EFF attorney Aaron Mackey said getting that information will help demonstrate whether the government is complying with its obligation to periodically review gag orders.

“EFF has long been concerned about [national security letters] because they are restraints on speech,” Mackey said.

EFF also represented two companies in a separate lawsuit challenging the gag orders, which the Ninth Circuit rejected last year. The appeals court found a reformed process for the non-disclosure orders withstood the “strict scrutiny” requirement for prior restraints on speech.

Reforms passed in 2015 allow companies to disclose a range of how many national security letters they receive, such as 0-499, but companies may not disclose the exact number of letters received or details on the type of information sought by the FBI.

Getting a list of companies who had gag orders terminated will shed light on how many businesses are speaking up about the use of this government surveillance tool, Mackey argued.

“We’re trying to understand to what extent is this actually happening and people are actually speaking about it as Congress intended,” Mackey said.

The 2015 reforms also enable companies to challenge the gag orders in court, but EFF has argued the government should bear the burden of going to court before restricting someone’s First Amendment rights.

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 requirements, Mackey said the FBI can still keep gag orders in place for as long as it wants.

“We think they’re still problematic and violate the First Amendment,” he said.

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