Not long ago, the American Civil Liberties Union pried from the United States government the momentous news that the feds are actually informing recipients of national security letters that they have a legal right to challenge the letters' demands for private information and their don't-tell-anybody insistence on secrecy. That sounds small, but it was progress, especially for those people unlucky enough to be on the receiving end of a letter that threatens dire consequences if they so much as seek advice. Now, though, the government is suing a telephone company that made use of its recourse. The feds say the delay in disclosure from a legal challenge constitutes "interference with the United States' sovereign interests." And besides, say the feds, the court has no authority to declare gag orders associated with national security letters unconstitutional. So there.
Because of the gag order, the phone company in question, which is represented by the Electronic Frontier Foundation, can't identify itself. But through some sleuthing, the Wall Street Journal determined that the company in question is probably Credo, which used to be known as Working Assets, a firm that diverts some of its take to lefty causes, and which has opposed other parts of the Patriot Act in the past. Whether Credo or another company, though, the firm at the center of the current case has anonymously entered into a high-profile fight. Reports the Journal:
NSLs generally seek financial, phone and Internet records but don't request information about the content of emails, texts or phone calls. According to a Justice Department report, the FBI sent 192,499 such requests between 2003 and 2006. The vast majority go uncontested.
In the challenge playing out in California, the company is fighting the letters on constitutional grounds. It is arguing, among other things, that the gag orders associated with most of these letters improperly restrain speech without a judge's authorization.
Congress amended the Patriot Act in 2006 to provide a channel for challenging national security letters — something that hadn't actually existed before. As mentioned above, the ACLU won from the feds the concession that people had to be informed that possibility of a challenge exists. But the federal government now argues that failing to release the demanded information while challenging a letter "interferes with the United States' vindication of its sovereign interests in law enforcement, counterintelligence, and protecting national security." That's news to the author of the amendment, says the Journal.
Rep. Jeff Flake, an Arizona Republican who crafted the 2006 amendment, said the law means that people who challenge a letter don't need to provide the information sought by the government until the court orders them to do so.
The phone company in the case is challenging the NSL and the gag order both. As the EFF phrases the issue:
[O]ne of the core constitutional issues (already recognized by one federal appeals court) is that it turns the First Amendment's procedural prior restraint doctrine on its head by allowing the FBI to issue a never-ending prior restraint on its own, then requiring the recipient service provider to undertake a legal challenge. Another fundamental problem with the NSL statutes is that courts are all but written out of any part of the process: the FBI can issue demands for records and gag provisions without court authorization, and recipient telecommunications and financial companies have no way to determine whether and how the government might be overreaching or otherwise abusing its authority. Not surprisingly, given these significant structural barriers, legal challenges are extraordinarily rare.
The First Amendment issues, going beyond objections to a specific letter, seem to stick in the Justice Department's craw. The feds are prepared, it appears, for letter-by-letter arguments — but not for challenges to the whole system of secretive NSLs. The feds response? They claim that they're beyond the reach of the court.
In a related statute, 18 U.S.C. 3511, Congress provided for judicial review of NSLs. Petitioner has availed itself of that judicial review mechanism to challenge the request for information in the NSL it received as well as the nondisclosure requirement. Section 3511 is a limited waiver of sovereign immunity that permits petitioner to seek only the modification or invalidation of the individual NSL it received, so there is no warrant or jurisdiction for broader relief, such as facial invalidation of the NSL statutes.
If the Justice Department's argument prevails, that means the constitutionality of the gag orders has to be challenged through some other means — what other means when you're under the duress of a super-secret gag order isn't clear. As Orin Kerr of the George Washington University Law School told the Journal, "I would say this is a puzzling argument. There has to be a way to challenge the constitutionality of the law."
Well … You'd hope so.