No Secret Laws: Ninth Circuit Weakens Secrecy Surrounding “National Security Letters”

Parts of the opinion were particularly pithy.
Parts of the opinion were particularly pithy.

When the USA FREEDOM Act passed on June 2, we criticized it as weak-tea reform that codified rather than changing surveillance agency practices. It’s still weak-tea reform that codified agency practices, but it has also now led to a new and valuable ruling on the infamous practice of “national security letters” (NSLs).

NSLs are issued by the FBI, mostly to companies, and ask them for information on their users. They originated in the late 1970s, but at that time the FBI couldn’t require compliance; enforcement mechanisms were added only in the late 1990s, after the Aldrich Ames spy scandal. The PATRIOT Act of 2001 loosened the rules, allowing, among other changes, NSLs to be issued without the specific approval of the FBI Director or Assistant Director. NSL use exploded from 8,500 in 2000 to 56,504 in 2004 and still runs at a rate of above 21,000 per year. NSL recipients are barred from discussing whether they have received them or what the NSL asks for. Companies aren’t even allowed under law to state that they have not received any NSLs. The argument the government has repeatedly made is that allowing companies to say this, would encourage terrorists to use those companies and not others; but this attitude also leaves the average privacy-conscious consumer in the same soup as the “terrorist.”

Until now, with a new ruling from the Ninth Circuit.

Nicholas Merrill, CEO of now-defunct ISP Calyx, received an NSL back in 2004, including a gag order. He has been fighting it through the courts for twelve years, and in previous rulings was allowed to disclose portions of the NSL. This ruling relates to the last undisclosed portions of the NSL, which include the FBI’s list of the kinds of material the NSL statute permits the FBI to use an NSL to ask for. The court ruled that, thanks to revisions to the NSL statute introduced in the USA FREEDOM Act, the FBI now needed to show “good reason” why Merrill should be barred from disclosing or discussing that list of material; and that the “good reason” could not simply be a conclusory statement alleging future harm to national security, but would need to be based on “substantial” evidence of a likely harm. That was sufficient for them to order the overturning of the last portions of the gag order; though the Court will not unredact the redacted portions of its ruling until after the government exhausts its appeals.

In the course of reaching this ruling, the Court makes a number of excellent points, notably that if NSL recipients are barred from discussing the types of data the FBI might be collecting, the only people able to participate in public political discussions about the types of data the FBI is collecting through NSLs will be people who have never received an NSL, which seems perverse.

This, in miniature, is the whole problem with creating effective civilian oversight of intelligence activities, in the context of a state that practices unreflective secrecy about a vast proportion of its activities. Our elected leaders right now cannot, on balance, be well-informed about the extent and activities of the surveillance state. Congress’s Intelligence Committees, and even, in many cases, only certain members of those Committees, have mutated from providing oversight of the surveillance state, to acting as gatekeepers of information about it in order to prevent effective oversight. Without whistleblowers, we would have very little idea even that there were any abuses to correct. Even with whistleblowers, understanding how far and how unconstitutionally the surveillance state extends is a matter for dedicated and lengthy study, of a kind that elected leaders have little time for. The information Mr. Merrill wanted disclosed was mostly publicly available, and the elements that were not may reasonably be inferred from what is publicly available, but the FBI still fought tooth and nail the release of documents that would prove that the FBI requests from companies pretty much everything about their users, without meaningful limitation of data type or time.

Why did the FBI fight so hard?

To avoid embarrassment.
To prevent opposition.
To prevent the accountability that could come out of meaningful public discussion.

The FBI and the other surveillance agencies, are pretty content with the position they occupy in American society. They are still generally lionized in TV shows; many politicians still tend to defer to their judgements; they enforce deference and suppress dissent. That’s the way many people like it. Thanks to the Snowden revelations, the media and the courts are more suspicious, and some legislators are too; but that sentiment is far from universal.

National Security Letters are a measure of how far we have come from a free society. Paradoxically, they are also a measure of how far we have to go before our society is truly unfree. Bad as they are, they are not yet lettres de cachet: They seek to obtain data, and don’t in themselves order someone imprisoned without trial. Nevertheless, we should distrust them and oppose them wholesale, as a species of secret law alien to our traditions. The Fourth Amendment sets out how the FBI should obtain such information: Using a probable cause warrant, from a neutral and detached magistrate, not a self-stamped secret permission slip.

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