In 2010 alone, Wired’s Threat Level explains, the government sent more than 24,000 National Security Letters to Internet service providers and other companies such as credit and financial institutions. Letters such as these come with a gag order in place, which requires the companies to stay mum on the fact that the government was seeking to acquire information on individuals.
One company served with an NSL earlier this year is pushing back on this request for silence. Wired reports that it wants to tell its customers that their information has been requested by the government and give them the opportunity to take it to court, should they wish. This “minor defiance,” Wired states, has caused the government to file a request that the company, which remains unnamed, be forced to remain quiet because speaking out “may endanger the national security of the United States.”
Wired has more on a case that it believes “shed a little light” on NSLs post-9/11 when they were reformed to not require a court order and come with forced gag orders on companies:
The public has become aware of only a handful of some 300,000 NSLs handed out over the last decade, and those became public only after the recipients launched legal battles opposing them. As a result of these battles, courts have chipped away at the gag order requirement as a violation of the First Amendment, and internal watchdogs have uncovered some abuses of the FBI’s NSL authority. But the letters are still one of the FBI’s most powerful tools; a tool that is rarely discussed inside or outside Congress these days.
NSLs are a powerful tool because an FBI agent looking into a possible anti-terrorism case can essentially self-issue the NSL to a credit bureau, ISP or phone company with only the sign-off of the Special Agent in Charge of their office. The FBI has to merely assert that the information is “relevant” to an investigation.
The gag orders raise the possibility for extensive abuse of NSLs, under the cover of secrecy. In fact, in 2007, a Justice Department Inspector General audit found that the FBI, which issued almost 200,000 NSLs between 2003 and 2006, had indeed abused its authority and misused NSLs.
The inspector general found that the FBI evaded limits on (and sometimes illegally issued) NSLs to obtain phone, e-mail and financial information on American citizens, and that it had also underreported the use of NSLs to Congress. In 2006 alone, the FBI issued more than 49,000 NSLs, but that number dropped dramatically to 16,804 in 2007 following the inspector general’s report. After the Justice Department claimed it instituted reforms to address the legal lapses, the number of NSLs issued increased to 24,744 in 2008. In 2010, the most recent year for which statistics are available, the FBI issued 24,287 NSLs.
Wired reports on a couple court cases that brought up the constitutionality of gag orders, one of which took six years to remedy. Nicholas Merrill received a request for email addresses and billing information from the government when he was the owner of Calyx Internet Access. Merrill, who was not allowed at first to reveal his name or the company, with the ACLU brought the NSL request to court, stating that the customer information was protected under the Constitution. In a back-and -forth, the Second Circuit Court of Appeals ruled in 2008 — four years after the initial request — some parts of the NSL gag order were unconstitutional. From there, Wired reports that the U.S. District Court for the Southern District of New York said the feds had to justify why a gag order should be maintained. Here’s what happened next:
In June 2009, the government introduced secret evidence to the court to justify continuing the gag order, claiming that if information were revealed about the letter it would harm an ongoing investigation. Merrill and his attorneys were prevented from learning the specifics of the evidence in order to refute it. The government was then ordered by the court to produce an unclassified summary of its evidence.
Wired reports that eventually only a partial gag order was issued, giving Merrill the ability to share the name of himself and his company. This was in exchange for dropping the case and keeping other details secret. While this may seem like a small victory — if that — Wired reports that it gave NSL recipients the ability to challenge NSLs and gag orders, which they could not really do before, and requires the FBI to make a case for why a gag order should remain in place.
In the more recent case of the unnamed company “with employees dispersed across the world,” Wired reports that it challenged the gag order last week. This brings us to the FBI asking the court to enforce the gag because information requested by the government includes “international terrorism or clandestine intelligence activities.”
The FBI did not respond to Wired’s request for comment on the case.
Featured image is by Robert D. Brooks via Flickr.