SAN FRANCISCO (CN) — The Ninth Circuit on Monday upheld the FBI’s use of gag orders to muzzle companies about the number and content of national security letters they receive seeking records on their customers without a warrant.
A three-judge panel found that because the gag orders serve a compelling government interest — protecting national security — and because the FBI must review them periodically and defend them in court upon request, the directives do not violate the First Amendment.
“We conclude that § 2709(c)’s nondisclosure requirement imposes a content-based restriction that is subject to, and withstands, strict scrutiny,” Ninth Circuit Judge Sandra Ikuta wrote for the unanimous panel.
Attorney Andrew Crocker with the Electronic Frontier Foundation said his clients, who challenged gag orders as unconstitutional, were disappointed by the ruling. He said the panel appeared to “dodge” some major problems with the law, including the government’s ability to keep gag orders in place forever and to avoid justifying its prior restraint on speech.
“We think that the government shouldn’t be allowed to impose gag orders on internet service companies like our clients without satisfying a high burden and going to court,” Crocker said.
His clients, internet and telecom companies CloudFlare and CREDO Mobile, say the gag orders prevent them from publishing comprehensive transparency reports, building trust with customers and fully participating in public debate about the controversial policy.
U.S. District Judge Susan Illston in San Francisco declared the practice unconstitutional in March 2013, but stayed her ruling pending appeal. She reversed her ruling in April 2016, finding Congress enacted adequate constitutional safeguards when it passed the USA Freedom Act of 2015.
The panel agreed with Illston’s 2016 ruling, finding the amended law requires the FBI to cite one of four justifications for issuing gag orders and to review the need to keep gag orders in place at two intervals: three years after an investigation starts and when it is closed.
The panel acknowledged that those procedures “do not resolve the duration issue entirely,” as gag orders can remain in place indefinitely after an investigation is closed. But the judges found companies’ ability to seek judicial review served as an adequate check on the FBI’s power to place potentially permanent restrictions on speech.
Crocker disagreed, saying the government should not be able to issue gag orders without justifying them in court.
“At every stage of this, because it’s a prior restraint, it’s important that the burden is supposed to be on the government to justify any limitation of free speech rights, at each stage,” Crocker said.
However, the panel found the burden for companies to seek judicial review is de minimis, or minimal, because the only hurdle is to notify the government by mail.
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 of the type of information sought by the FBI.
The two telecom companies challenged that directive as too restrictive, but the panel said it would not “quibble with the particular ranges selected by Congress.”
Crocker said the court is supposed to evaluate such issues, because that is the role of the judiciary.
“I read that as the court simply just deferring to Congress, and that’s not what the law requires,” he said.
Crocker’s clients could request a rehearing of the full Ninth Circuit or take their case to the Supreme Court. He said they are considering their options.
The Electronic Frontier Foundation filed another lawsuit against the Justice Department in June, seeking records on its periodic review of national security letter gag orders. Crocker said it was “mystifying” that the FBI claimed to have no records on its mandatory review of the gag orders.
“We will continue to work on this issue of indefinite gag orders and other gag orders more generally,” he said.
Ninth Circuit Judges N. Randy Smith and Mary Murguia joined Ikuta on the panel.
The Department of Justice did not respond to an email seeking comment Monday afternoon.