Intrusive National Security Letters Get Appeals Court Scrutiny

Last year, U.S. District Judge Susan Illston
ruled that national security letters—sort of like subpoenas, but
more secret police-y—are
unconstitutional. She then promptly
ordered Google to obey one anyway, so don’t look for
consistency from the bench. Now the U.S. Court of Appeals for the
9th Circuit will have its own say on the controversial
investigative tools which have been a particular favorite of the
FBI.

As Dustin Volz puts it for
National Journal:

The case, to be brought before a panel of the U.S. Court of
Appeals for the 9th Circuit on Wednesday, could have sweeping
digital-privacy implications, and it represents one of the most
direct challenges to the legal authority for government spying in
the post-Snowden era. Many observers expect the case to ultimately
reach the Supreme Court.

At issue is whether the FBI can use so-called national security
letters, or NSLs, to compel companies to hand over communications
data or financial records of certain users for the purposes of a
national security investigation. These letters permit the FBI to
collect telephone and Internet data of suspects without court
approval and they often place a gag order on companies, which
prevents them from disclosing the government order.

The appeals court case is a follow-up to Judge Illston’s ruling
on the constitutionality of NSLs. It was brought by a
telecommunications company—widely believed to be Credo—in a challenge
to the wide-ranging data-hoovering NSLs represent, as well as the
gag orders that accompany them and prevent recipients from even
complaining about government incursions.

The gag orders can act as built-in coverups of misuse, and the
Electronic Frontier Foundation has documented abuses of the power
they represent, including an NSL issued to
North Carolina State University at Raleigh in search of
documents the FBI had already acquired. The university resisted,
which the feds then used as the basis for an argument that they
need more power.

How often the government misuses NSLs is unclear because of the
gag orders that prevent people from complaining. That’s exactly the
point raised in a
friend of the court brief filed by Reps. Zoe Lofgren
(D-Calif.), Thomas Massie (R-Ky.), Jared Polis (D-Col.), and Anna
Eshoo (D-Calif.).

NSLs are profoundly problematic because the FBI has
extraordinary discretion to issue these demands unilaterally and
shroud them in secrecy. Indeed, the Department of Justice Inspector
General has documented widespread misuse of this investigative
tool. Because Congress must depend on information reported by the
FBI to conduct oversight, and NSL recipients are barred from
disclosing even the most basic information about these demands, it
is exceedingly difficult to evaluate the Bureau’s use of this
controversial power

Government-imposed secrecy spurred Twitter to
file its own lawsuit yesterday, seeking legal authorization to
reveal to the public just how snoopy officialdom is being.

“The Constitution doesn’t permit the government to impose so
broad a prohibition on the publication of truthful speech about
government conduct. We hope that other technology companies will
now follow Twitter’s lead,” Jameel Jaffer of the ACLU
said in response.

And we hope that the U.S. Court of Appeals for the 9th Circuit
gives the FBI another judicial slap.