SAN FRANCISCO (CN) — The Ninth Circuit on Wednesday heard arguments that imposing potentially permanent gag orders on companies that must give the FBI information about customers through national security letters, without a warrant, is unconstitutional.
“No matter how you look at it, a perpetual gag order is inconsistent with the First Amendment,” Andrew Crocker, with the Electronic Frontier Foundation, told the three-judge panel.
Crocker represents two telecom companies — CREDO Mobile and Cloudflare — which challenged the FBI’s issuance of national security letters accompanied by gag orders. The gag orders bar recipients from divulging details of the orders or revealing the number of such requests they receive. The companies say the restrictions prevent them from publishing comprehensive transparency reports, building trust with customers and participating in public debate about a controversial policy.
The use of national security letters dates back to the 1980s and was reinforced by the USA Patriot Act after the Sept. 11, 2001, terrorist attacks. The FBI issued nearly 500,000 national security letters from 2003 through 2015, according to the Office of the Inspector General.
U.S. District Judge Susan Illston, in San Francisco, declared the practice unconstitutional in March 2013, but she stayed her ruling and then reversed it in April 2016, finding that Congress adequately addressed constitutional problems by passing the USA Freedom Act of 2015.
Defending Illston’s ruling on appeal, U.S. government attorney Lewis Yelin argued Wednesday that the USA Freedom Act did away with restrictions that limited when national security letter recipients could challenge the directives and accompanying gag orders.
“Recipients may now challenge the non-disclosure orders at any time,” Yelin told the panel.
The 2015 amendments also created new procedures, requiring the FBI to review the need to keep gag orders in place when each letter is issued, three years after each issuance, and when an investigation is closed.
Crocker argued that the surveillance tactic is still unconstitutional, despite changes under the USA Freedom Act, because it places prior restraint on speech without initial court oversight.
He argued that Illston issued her ruling based on the "faulty premise" that his clients are not “customary speakers,” such as distributors of movies and books, who are afforded greater protection against prior restraint.
In an opening brief, the telecoms argued that the Supreme Court “never so much as hinted” that certain entities such as movie distributors get greater protection against prior restraint than “non-customary" speakers.
Crocker also cited the fact that gag orders can remain in place indefinitely once an investigation is closed as another factor that makes the surveillance tactic not narrowly tailored enough to achieve its intended purpose of protecting national security.
Answering a question from Ninth Circuit Judge Mary Murguia, Yelin acknowledged it is possible for gag orders on companies to remain in place indefinitely.
But the government attorney insisted that an indefinite gag order does not violate the safeguards established in the 1965 Supreme Court ruling, Freedman v. Maryland, which held that government entities could not unilaterally ban films and other expressions of free speech without a court order.
“The Freedman requirements require judicial review only when a recipient actually wishes to speak,” Yelin said.
The FBI issues tens of thousands of national security letters each year and receives relatively few requests for disclosure and “very few instances” of lawsuits challenging gag orders, he said.
Yelin said the burden placed on recipients to challenge gag orders is de minimis, or minimal, because they need only drop a letter in the mail requesting review of the FBI directive.
Murguia was not persuaded by that argument.
“If it requires any effort by the recipients, where is that permissible under Freedman, because it says the burden should be on the government?” Murguia asked. “What you call a de minimis burden still puts the onus on the recipient.”
Yelin replied that no case law exists on that question because Freedman applied to a government licensing scheme for movies, not national security. He reiterated the government's argument that those who wish to challenge the gag orders in court may do so at any time.
Given the last word, Crocker urged the panel to find the use of national security letters and their accompanying gag orders unconstitutional. He said the gag orders are “clearly over-inclusive, not narrowly tailored, and don't consider less restrictive alternatives.”
“Imagine a law that does stop and frisk and says you can’t talk about this unless you go to court,” Crocker said. “That’s not something that would be allowed, but it’s allowed here. The evidence is quite strong that my clients wish to speak, and transparency reports are common in this industry.”
The telecoms initially filed their lawsuit under seal. The government lifted restrictions for CREEDO Mobile and Cloudflare to identify themselves as recipients of the challenged national security letters in November 2016 and January 2017, respectively.
Amendments passed in 2015 allow companies to disclose a range of how many national security letters they receive, such as 0-499, but they may not disclose the exact number of letters received or details on the type of information sought by the FBI.
Ninth Circuit Judges N.R. Smith and Sandra Ikuta joined Murguia on the panel.
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