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.'"
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."