Justice Department Lied in Court About National Security Letters

One of the more aggravating
characteristics of national
security letters (NSL)—those charming bits of fishing apparatus
the (primarily) FBI uses to extract information from banks,
telecoms, and other third parties about their customers—is the gag
orders they come with. No matter how over the top an NSL may be,
the recipient is forbidden to publicly complain in even the
broadest details about the government’s forced extraction of
sensitive information.

Or could we be wrong about that? As it turns out, last month
Department of Justice Attorney Douglas Letter insisted before the
United States Court of Appeals for the Ninth Circuit that a company
on the receiving end of an NSL “could publicly discuss the fact
that it had received one or more NSLs and could discuss the quality
of the specific NSL(s) that it had received.”

Letter’s argument was a pretty big deal, because it was a
rebuttal to
charges by the Electronic Frontier Foundation (EFF) that the gag
order violate First Amendment rights by stifling any sort of
discussion of government actions. That’s an argument a lower court

found convincing (although the same judge later ordered Google
to
comply with a gagalicious NSL anyway).

Now the feds are saying the First Amendment concerns are
overblown, because recipients really can discuss them.

Except, they can’t. After the EFF sent a “what the fuck?” query
to the Department of Justice, the feds…clarified matters. They

sent a letter to the court correcting any misconceptions
Attorney Letter may have left in his wake. “That suggestion was
mistaken,” the letter admits. “The district court correctly noted
that ‘the NSL nondisclosure provisions…apply, without
distinction, to both the content of the NSLs and to the very fact
of having received one.'”

Whoops.

As EFF Legal Director
Cindy Cohn points out, “it’s troubling that we had to raise the
issue before the government addressed it and that it seems the
government was willing to let the court believe that the gag was
narrower than it actually is in order to win the case.”