The Justice Department admitted that it gave false information to the U.S. 9th Circuit Court of Appeals in a lawsuit regarding gag orders on companies that provided customer data to the government.
The DOJ’s national security letters can require companies to provide communications and financial records of certain individuals who are the subject of a national security investigation. The national security letters, also called NSLs, frequently tell the companies they cannot publicly reveal information about the letters.
However, during arguments before the appeals court, the DOJ said that a company can reveal it received specific national security letters and how many they received.
Justice Department lawyer Jonathan Levy said in an unsealed letter that the reason for the letter to the court was to “correct that error," National Journal reported.
"That suggestion was mistaken," Levy wrote. "We regret this inadvertent inaccuracy and apologize for any confusion that may have been caused."
National security letters have been among the concerns of privacy advocates and civil liberty groups over the Justice Department’s handling of cases under Attorney General Eric Holder, who has also aggressively gone after national security leak cases involving journalist and their sources.
The digital-freedom group, the Electronic Frontier Foundation, represented a telecommunications firm that has declined to be identified. A federal judge had ruled that the gag order violated the First Amendment rights of companies. Because of national security concerns, the decision was stayed and the government appealed to the 9th Circuit.
The he DOJ agreed earlier this year to allow some reporting on national security letters – only in the bands of 1,000. This means that if a company has fewer than 1,000 letters, it could publicly say it has received between 0 and 999 national security letters from the department.
The EFF said this admission undermines the Justice Department’s case.
"During oral arguments, we were surprised to hear the government retreat from its position that NSLs gag recipients from talking about the 'very fact of having received' an NSL," EFF legal director Cindy Cohn said. "But now we learn that the government's position remains unchanged. Because the government's argument to the Ninth Circuit depended in part on the assertion that the NSL gag order does nothing to stifle public debate, this later retraction significantly undermines its case."
National security letters aren’t new, but have been increasingly used since 9/11 and usually come with gag orders.