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The FBI currently has the power to demand phone companies and ISPs hand over their customers' private information without a warrant—and stay quiet about it. (Photo: Global Panorama/flickr/cc)

Privacy, Free Speech on the Line as Court Considers FBI's Warrantless Surveillance Program

Civil liberties group to argue that Bureau's National Security Letters (NSL) violate First Amendment rights

Nadia Prupis

A federal appeals court on Wednesday began hearings into whether the government can spy on U.S. citizens without a warrant, reviewing a landmark case from 2013 that found a National Security Letters (NSL) statute of the Patriot Act—the FBI’s tool for unchecked surveillance demands—to be unconstitutional.

The U.S. Court of Appeals for the 9th Circuit heard testimony from both digital rights group Electronic Frontier Foundation and the Justice Department about the suppression-of-speech orders that accompany NSLs to prohibit telecommunications companies, like Internet Service Providers (ISPs), from discussing FBI demands for private customer data. A Justice Department lawyer expressed concern that national security efforts could be "hamstrung" if the Bureau was banned from secretly demanding information about U.S. citizens from their banks and phone companies and ordering them to stay quiet about it.

The court is likely to continue hearings for the next few months, EFF legal fellow Andrew Crocker told Common Dreams.

"This is in large part a free speech case," Crocker said. "It has pretty important implications for the free speech rights of service providers... being able to engage in debate about NSLs and other national security processes."

Over 100,000 NSLs have been issued since their power and usage soared after the Patriot Act was passed into law, allowing the FBI to demand, at will and without warrants, that phone companies and ISPs turn over private data about their customers’ communications and internet activity. The letters are also used to obtain information about citizens’ credit and banking history.

The EFF challenged one such gag order issued to an unidentified internet organization in 2011 after it received an NSL from the FBI, which claimed the data demand was related to a terrorism investigation. In a decision the EFF called "remarkable," U.S. District Judge Susan Illston struck down the NSL statute in 2013 when the case reached the lower court, ruling that the gag order violated the First Amendment and that the government could not justify prohibiting the company from disclosing the contents of the NSL.

"The government has failed to show that the letters and the blanket non-disclosure policy serve the compelling need of national security," and the suppression of information creates "too large a danger that speech is being unnecessarily restricted," Illston wrote at the time of her 2013 decision.

As Freedom of the Press executive director and former EFF activist Trevor Timm explained, "the case was so consequential that the judge put a hold on enforcing her ruling until the Court of Appeals could rule on the contentious issue first."

Illston gave the government 90 days to appeal.

Wednesday's proceeding, though it is just the first in what will be a series of similar hearings, "shows the court's willingness to take on these kinds of cases," Crocker said.

Alan Butler, senior counsel at the Electronic Privacy Information Center (EPIC), told Common Dreams that NSLs and the FBI’s "other surveillance authorities frustrates the public oversight to curb abuses of these authorities."

The EFF’s case on Wednesday "is an important challenge to the FBI’s secrecy claims, and more needs to be done to improve government transparency in this area," Butler added.

Only a handful of challenges against the NSLs have reached the courts, while Illson’s decision did not receive the magnitude of attention it would have if it had come after Edward Snowden’s NSA revelations rather than a few months before, Timm notes.

The case pits privacy watchdogs and civil liberties advocates against government agents who claim their surveillance tactics are necessary to maintain national security. But as the ACLU points out, the FBI issued 192,499 NSLs between 2003 and 2006 and did not make a single terror-related conviction with the information they obtained. In fact, the only terrorism conviction made in that time period would have occurred without the Patriot Act itself, the ACLU says.

EFF's case "is an important challenge to the FBI’s secrecy claims."
—Alan Butler, Electronic Privacy Information Center
As Gregory Nojeim, director of the Freedom, Security, and Technology Project at the Center for Democracy and Technology, told Common Dreams, "You don't have to be a suspected criminal for the FBI to get information about you using one of these letters... One of the reasons the FBI likes this tool, it's because consumers never know that their data was given to the government."

If the court upholds Illson's ruling, "it could have a tremendous impact on Americans' privacy," Nojeim added. "With a more limited gag, there are likely to be more limits on these letters. It will have a positive impact on privacy."

Several civil liberties hawks in Washington have also taken a stance against the NSLs in light of the EFF’s hearing. "NSLs are profoundly problematic because the FBI has extraordinary discretion to issue these demands unilaterally and shroud them in secrecy," Reps. Zoe Lofgren (D-California), Thomas Massie (R-Kentucky), Jared Polis (D-Colorado), and Anna Eshoo (D-California) wrote in a friend-of-the-court brief (pdf). The gag orders "violate the free expression rights of communications service providers that want to be more transparent and forthright with their users, Congress, and the public."

"NSLs are issued directly by investigators who are also empowered to impose never-ending non-disclosure orders on recipients—without any prior judicial approval," the brief states. "No other legal process operates this way."

On Tuesday, Twitter filed a lawsuit against the government, arguing that the FBI, the Justice Department, and Attorney General Eric Holder are violating the company’s free speech rights by prohibiting it from disclosing the amount of NSLs and Foreign Intelligence Surveillance Act (FISA) court orders the company receives each year.

"Our ability to speak has been restricted by laws that prohibit and even criminalize a service provider like us from disclosing the exact number of national security letters ("NSLs") and Foreign Intelligence Surveillance Act ("FISA") court orders received—even if that number is zero," Ben Lee, a Twitter vice president, wrote in a blog post.

Crocker noted that Lee's caveat—"even if that number is zero"—is one of the NSL gag order "schemes" currently being fought in the case. "The status quo is [companies] generally aren't allowed to talk about it except in broad strokes," Crocker said, adding that the ruling, if upheld, "would be a pretty important precedent in [Twitter's] case."

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