Court Rejects FBI's Argument That Discussing NSLs With Lifted Gag Orders Would Threaten National Security

Legal Issues

from the national-obtusity dept

The FBI uses National Security Letters like regular people use copy paper. It issues thousands of these every year. It works out great for the FBI because it gets to bypass judicial review. If it wants some identifying info, it just writes out its own subpoena, signs it itself, and slaps on an indefinite gag order preventing the company receiving the NSL from informing the targeted users, much less the rest of its customers that the FBI is poking around in its innards.

The passage of the USA Freedom Act made things a bit more difficult for the FBI. It now has to review its gag orders periodically to make sure they’re still necessary. Of course, the FBI more often than not decides they are and recipients must ask a court to make the final determination.

When this happens, the FBI likes to rely on its national security arguments. These arguments also tend to bypass judicial review as many courts are willing to grant the agency deference on these issues, assuming the FBI knows more about the national security implications of lifting a gag order than the courts do.

But it doesn’t always work. Some courts are probably just tired of the FBI shouting “National security!” every time someone wants to talk about its NSLs. The federal court in the northern district of California is one of these courts. It likely sees far more challenges than any other court in the land, thanks to its coverage of the Silicon Valley. As Nicholas Iovino reports for Courthouse News Service, this FBI request for indefinite silence has been shot down.

The Department of Justice must unmask the names of companies cleared to disclose details of the FBI’s warrantless demands for customers’ private information, a federal judge ruled Tuesday.

U.S. District Judge Vince Chhabria found the government failed to show how revealing the names of companies freed from gag orders that accompany national security letters (NSLs), or secret government demands for customer records, would harm national security.

Chhabria rejected arguments that releasing “this seemingly stale and harmless information” would help criminals avoid FBI detection.

The opinion [PDF] may only be three pages long, but it’s more than sufficient to dismiss the FBI’s weak arguments. In this case, the EFF is seeking disclosure of the companies the FBI has issued “termination letters” to. These letters end gag orders and allow companies to discuss (if they want to) the NSLs publicly. The FBI claimed this information was subject to an FOIA exemption [specifically (b)(7)(e)] — one that protects info that would “disclose techniques and procedures for law enforcement investigations.”

According to the FBI’s twisted thinking, even revealing the names of companies no longer subject to gag orders would prevent the agency from doing its important national security work. After all, these are National Security Letters we’re talking about. Ignored by the FBI was the obvious fact that if the recipients were now allowed to discuss un-gagged NSLs, it stands to reason anyone armed with an FOIA request should be able to access this now-public information.

First, the court points out the FBI is still engaging in plenty of secrecy with its NSLs. A very small percentage of these are no longer subject to gag orders. It stands to reason discussing this minute subset would not render this program unusable and threaten the security of the nation.

As an initial matter, the number of termination letters is minute compared to the overall number of national security letters. From 2015 to 2017, the FBI issued over 37,000 national security letters, but issued termination letters lifting nondisclosure requirements for only 750 national security letters. See Seidel Decl. ¶ 9, Dkt. No. 32-2. This alone casts doubt on whether disclosure of the terminations will reveal any sort of technique or procedure – at least beyond the already well-known technique of using national security letters.

Additionally, the FOIA request only targets NSLs for which the FBI has terminated a gag order. If it was a request for all companies the FBI has approached, it might be a problem. But the EFF is only seeking the subset where the FBI has declared — via termination letters — national security is no longer affected by public disclosure.

Perhaps if the terminations were issued for a random sampling of national security letters, such a small sample size could still shed light on the overall universe. But these are particular investigations, of particular people, for which the FBI has determined it is not a problem to lift the nondisclosure requirement. There’s no reason to expect that company usage patterns for that unique subset of people would reflect the company usage patterns for everyone being investigated, either now or in the future.

The court also points out releasing this information would only shed light on what the FBI has already done, not what it’s currently engaged in. Presumably, termination letters accompany the closing of investigations, so there’s nothing in this list of companies that would threaten ongoing investigative efforts.

In a world where technology and communication methods are changing rapidly, there’s no basis for assuming that a tiny sampling of decisions the FBI made several years prior will shed meaningful light on the decisions it’s making today.

If the FBI wants to make breathless declarations of threatened national security, it had better bring evidence to back these claims up. As the judge notes, the FBI gave the court nothing to work with.

Because the government’s allegation that aggregate disclosure of termination letters would reveal a law enforcement trend is so dubious, it was incumbent on the government to illustrate in a classified document – perhaps using specific examples – how requiring the government to turn over this seemingly stale and harmless information would constitute disclosure of a law enforcement technique or procedure, or why it would risk assisting criminals in avoiding FBI detection. But the declaration of Alan Kohler, which the Court reviewed in camera, does not accomplish that.

With that, the FBI will have to hand over the list of companies it said could go public with received NSLs — the same list it says will wreak havoc on national security by:

A. Publicizing public information

B. Inform the public about already-known facts related to its NSL use

The court is being nice when it calls the FBI’s arguments “dubious.” They’re patently ridiculous.

Filed Under: data, fbi, gag order, national security, national security letters, nsl