SAN FRANCISCO (CN) - National-security linked gag orders have largely kept telecoms and Internet service providers out of the debate on government intrusion into the lives of private citizens, but the nonprofit group representing those companies urged the 9th Circuit on Wednesday to let its clients start talking.
Lawyers for the government and the Electronic Frontier Foundation fought before a three-judge panel over the constitutionality of a part of the Patriot Act that allows the FBI to demand that ISPs and telecommunication companies give it information on their customers.
Companies that receive such National Security Letters, or NSLs, then face gag orders, but they cannot identify themselves as legal parties for fear of prison time, Kurt Opsahl, an attorney with the Electronic Frontier Foundation, noted at the hearing.
U.S. District Judge Susan Illston found letters facially unconstitutional and ordered the government to stop issuing the letters, but she stayed her ruling pending the 9th Circuit appeal.
Circuit Judge N. Randy Smith questioned the onus that the government puts on the companies to try to end the gag order themselves through a petition process that takes years.
"It seems to me that if I'm going to narrow this statute, there should be some obligation on the part of the government to end the order," Smith asked DOJ lawyer Douglas Letter. "Why isn't there? Why wouldn't that be something I need not worry about?"
"Why is it that the petitioner is going to be gagged for as long as the government desires and the only way the order ever comes up as if the petitioner does something about it and then the petitioner is prohibited from attacking it for a year," the judge added. "If I really want to make this as narrow as possible, we ought to have something in here about the government's responsibility to end the order."
Letter responded by comparing the gag order to those that grand jurors face.
Smith countered that "the grand juror isn't the one that has to come forward and do anything about it."
"People subject to these disclosures are the only ones under the statute that need to do something, and can't do anything for a year after one particular challenge and the government can keep these things going on permanently," the judge said.
Letter said: "This is a balancing that Congress has done."
"I'm still trying to figure out why one can't envision in such a statute that the government, since they impose it, ought to have a burden to take it off," Smith said.
Letter replied: "Remember there are thousands of NSLs issued a year - because this is such a useful tool in counterterrorism, cybersecurity and counterintelligence investigations. The administrative burden would be totally impractical."
Smith wasn't buying that argument.
"So your argument is we issue so many of them that it shouldn't be our burden to deal with when they should quit," he asked.
Letter switched directions. "What you're suggesting is impossible," he argued. "The bureau would not be able to function if it had to look at every NSL issue and determine whether confidentiality still had to stay."
Pointing to a 2nd Circuit ruling from 2008, Letter noted that an injunction against the statute was found too broad. In that case, the Manhattan-based appellate court found the injunction should only prevent FBI officials from enforcing the gag order "in the absence of government-initiated judicial review."
The government is currently following the 2nd circuit's orders, but a 9th Circuit affirmation of Judge Illston's ruling would kill the NSL program, Letter said.
"If the injunction is upheld it means we can't use NSLs because the court would be imposing on us that we cannot meet," he said.
EFF lawyer Opsahl said the government is going too far, noting that a National Security Letter "allows for a wide range of things tangentially related" to a national security investigation, such as interference with diplomatic relations.
He said his unnamed clients would like to "speak with gravitas" about the NSLs they've received. "They do want to speak out but are limited in what they can say," Opsahl told the panel.
Judge Sandra Ikuta questioned what big revelation could come from the companies being allowed to talk. "The newsworthy event is I received an NSL," she said. "Absent of that there would be nothing to talk about. It's no 'I uncovered government corruption,' and the government says no you can't speak about that."
Opsahl said the companies had information on the government using the letters to go beyond the bounds of the statute, and were prohibited from even speaking to each other about how to address overly broad NSLs.
In response to Judge Mary Murguia's question of whether the companies could be compared to newspapers wishing to exercise free expression, Opsahl said, "They are perhaps like a newspaper that wishes to publish things to the world."