The Ninth Circuit Court of Appeals has just handed down a terrible decision in a fight against National Security Letter gag orders. The EFF has been working with plaintiffs Cloudflare and Credo Mobile to have these indefinite gag orders found unconstitutional.
Unfortunately, there's still nothing hopeful on the horizon in terms of government transparency. The Appeals Court has upheld the lower court's decision, finding this form of prior restraint somehow Constitutional. From the decision [PDF]:
The panel held that § 2709(c)’s nondisclosure requirement imposes a content-based restriction that is subject to, and withstands, strict scrutiny. The panel further held that, assuming the nondisclosure requirement was the type of prior restraint for which the procedural safeguards set forth in Freedman v. Maryland, 380 U.S. 51 (1965) were required, the National Security Letters law provided those safeguards. The panel concluded that the nondisclosure requirement does not run afoul of the First Amendment.
The panel notes the statutory framework for NSLs allows the government to ask for secrecy for an indefinite period of time to ensure investigations aren't interfered with or suspects prematurely notified of the government's interest in their activities. The statutes say the government "may" ask for secrecy. However, the FBI -- in the thousands of NSLs it issues every year -- reads this as "will." No one receives an NSL without a gag order attached.
Challenging gag orders is easier than it used to be, but it's still far from ideal. Rather than limited-time gag orders or stiffer requirements for the FBI to meet before deploying them, recipients have been given modestly-improved avenues of recourse. That may help going forward, but it's doing very little to address NSLs/gag orders sent out before the USA Freedom Act reforms in 2015. Old NSL gag orders are still mostly unassailable. At the center of this case are NSLs dating back to 2011 and 2012. For reasons only known to the government, these half-decade-old gag orders are still in place.
The court recognizes gag orders are content-based restrictions of speech. This means the government has to hit a higher bar to justify this control of citizens' speech. But the Appeals Court agrees with the lower court: to meet this high bar, the government just needs to deploy national security mantras.
As a threshold matter, we readily conclude that national security is a compelling government interest. Indeed, the Court has recognized that “[e]veryone agrees that the Government’s interest in combating terrorism is an urgent objective of the highest order.” “It is ‘obvious and unarguable’ that no governmental interest is more compelling than the security of the Nation.”
By the same token, keeping sensitive information confidential in order to protect national security is a compelling government interest. See Dep’t of the Navy v. Egan, 484 U.S. 518, 527 (1988) (recognizing “the Government’s compelling interest in withholding national security information from unauthorized persons in the course of executive business” (internal quotation marks omitted)); Snepp v. United States, 444 U.S. 507, 509 n.3 (1980) (“The Government has a compelling interest in protecting both the secrecy of information important to our national security and the appearance of confidentiality so essential to the effective operation of our foreign intelligence service.”).
The plaintiffs pointed out that while the USA Freedom Act gave them new tools to challenge NSL gag orders, it also lowered the standards governing the attaching of gag orders. Instead of nondisclosure demands being approved only by the FBI Director, any number of designees could perform approvals. The court responds by saying "Trust the FBI."
[T]he new 2015 provision allowing disclosures to “other persons as permitted by the [FBI] Director” or the Director’s designee, id. § 2709(c)(2)(A)(iii), merely provides the FBI with more flexibility to tailor the scope of the nondisclosure provision. We reject the recipients’ argument that this provision gives the government unfettered discretion and therefore creates a system of insufficiently cabined prior restraints. Even if the NSL law is determined to be the type of regulation for which procedural safeguards are required (see section V, infra), the law as a whole imposes narrow, objective, and definite standards on the government before it can issue a nondisclosure requirement…
The fact that the statute also gives the FBI Director or a designee discretion to make additional exceptions to the nondisclosure requirement does not lessen the adequacy of the clear standards imposed on these officials before issuing a nondisclosure requirement in the first place.
The court also says this isn't a case of prior restraint, even though each NSL arrives with some legal language preventing recipients from even acknowledging the NSL's existence. The panel declares NSL recipients have no "intent" to speak, so telling them not to talk somehow doesn't damage their First Amendment rights.
[N]SL law prohibits the disclosure of a single, specific piece of information that was generated by the government: the fact that the government has requested information to assist in an investigation addressing sensitive national security concerns, i.e., “to protect against international terrorism or clandestine intelligence activities.” 18 U.S.C. § 2709(b)(1). As the Second Circuit noted, “[u]nlike an exhibitor of movies,” the recipient of a nondisclosure requirement “did not intend to speak and was not subject to any administrative restraint on speaking prior to the Government’s issuance of an NSL.”
So, I guess it's not prior restraint because companies could talk vaguely and non-specifically about NSLs they might receive, but aren't allowed to talk about any NSLs they have received until the government says it's ok. Seems legit.
The next step for the EFF and a number of NSL recipients is the Supreme Court. Given the ongoing deference to anything national security-related, it would be a surprise if the nation's top court reversed two lower court decisions. It may decide it's not even worth reviewing if petitioned. As it stands now, the government can demand indefinite silence from service providers thousands of times a year… all supposedly without violating the Constitution.