Tuesday, December 16, 2008

Federal court gags on gag orders

National security letters have been a stain upon the U.S. criminal justice system for several years now, permitting, as they do, federal investigators to go on a fishing expedition through private records -- and then forbidding the recipients of the letters to publicly complain about the treatment they've received. Now, after a decision by the U.S. Court of Appeals for the Second Circuit, the use of the letters will finally be subject to some judicial oversight.

Some oversight, implying a bit of restraint.

In a 2007 report (PDF) revealing widespread abuses of National Security Letters, the Department of Justice's Office of the Inspector General described the documents:

Four federal statutes contain five specific provisions authorizing the Federal Bureau of Investigation (FBI) to issue national security letters (NSLs) to obtain information from third parties, such as telephone companies, financial institutions, Internet service providers, and consumer credit agencies. In these letters, the FBI can direct third parties to to provide customer account information and transactional records, such as telephone toll billing records.

Before the Patriot Act, NSLs could be used only to gain information "involving a foreign power or an agent of a foreign power." The Patriot Act allowed the use of NSLs in pretty much any case where the words "espionage" or "international terrorism" were invoked. By 2005, 53% of NSLs involved Americans rather than foreigners.

And invoked they have been.

The Inspector General's report points out that the use of these letters soared from 8,500 in 2000 (before the Patriot Act) to 39,000 in 2003, 56,000 in 2004, and 47,000 in 2005. Each letter may contain more than one request for information, so even those figures understate the matter.

And the FBI apparently engaged in poor recordkeeping. The report dug through the files and found 17% more NSLs than had been officially recorded.

This is all important because NSLs allow federal agents to engage into far-reaching probes through sensitive private information, on the say-so of federal law enforcement officers, without judicial review.

And if you're an ISP or a phone company and don't like being on the receiving end of an NSL, tough luck. You can't complain in public about the letter, inform the ultimate subject of the investigation or do much at all but fume -- in private -- about the situation. The gag order, like the NSL, is on the say-so of the agents conducting the investigation.

In the words of Title 18, Section 2709(c):

... no wire or electronic communications service provider, or officer, employee, or agent thereof, shall disclose to any person (other than those to whom such disclosure is necessary to comply with the request or an attorney to obtain legal advice or legal assistance with respect to the request) that the Federal Bureau of Investigation has sought or obtained access to information or records under this section.

Until now.

Last year, a federal district court judge found the gag order provisions of the national security letters to be offensive to the First Amendment and to separation-of-powers language in the Constitution. That decision was appealed.

The Second District U.S. Court of Appeals agreed to a large extent (PDF), although it was much more deferential to the government's "national security" mantra than was the lower court. The appeals court noted that the gag order served as a constitutionally suspect "prior restraint" on speech, even if it's one that operates in a specific area of speech.

The nondisclosure requirement of subsection 2709(c) is not a typical prior restraint or a typical content-based restriction warranting the most rigorous First Amendment scrutiny. On the other hand, the Government’s analogies to nondisclosure prohibitions in other contexts do not persuade us to use a significantly diminished standard of review. In any event, John Doe, Inc., has been restrained from publicly expressing a category of information, albeit a narrow one, and that information is relevant to intended criticism of a governmental activity.

The court also dismissed the government's argument that judges should simply accept FBI officials' assurances that national security would be at stake if NSL recipients were allowed to air their complaints in public, saying that such a role would reduce judges to "petty functionaries."

Ultimately, the court let the NSL gag orders stand, but required that the FBI initiate judicial review of each order to determine if it's justifiable and to give the recipient an opportunity to contest the order in court. This is a much less sweeping decision than the one reached in the lower court, but it's a real challenge to the "just trust us" security state philosophy that has prevailed through the Bush years.

After all these years and tens of thousands of national security letters, it's about time that somebody got a chance to take a look at what the investigators have been doing under cover of legally imposed silence.

Labels: , ,


Blogger akaGaGa said...

JD, do you know if anyone has ever tested the NSL's and what the consequences were? If I ran a phone company, I would be tempted to just say "no" to the FBI and then go public with the whole letter. Has anybody else done this? Are they still alive?

December 17, 2008 2:00 PM  
Blogger J.D. Tuccille said...

I haven't heard of anybody telling the feds to get lost. The first reaction -- a natural one for ISPs and telecoms, especially withe the ACLU joining in -- was to sue. That's what brought us to this point.

Just ignoring an NSL or a gag order would probably win a fast-track escort to a deep, dark hole somewhere.

December 17, 2008 2:08 PM  

Post a Comment

Links to this post:

Create a Link

<< Home