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A federal appeals court on Monday ruled that the gag orders that come with FBI National Security Letters (NSLs) are constitutional, rejecting a challenge from CloudFlare and CREDO Mobile. (See the ruling below.)
The three-judge panel of the 9th US Circuit Court of Appeals in San Francisco unanimously upheld a lower court ruling, which declared the nondisclosure rules do not violate the First Amendment.
The FBI uses NSLs to compel companies to turn over data without a warrant, and they’re served almost exclusively in secret with an indefinite gag order. Some gag orders are issued indefinitely, meaning the targets of surveillance may never know their data has been acquired by the government.
Writing for the panel, Judge Sandra Ikuta wrote, “As a threshold matter, we readily conclude that national security is a compelling government interest” for issuing gag orders. Moreover, the panel concluded that the nondisclosure requirements are narrowly tailored — even though they bar the disclosure of even the bare fact that an NSL has been received, and even though they may prohibit disclosure indefinitely.
CREDO sued over the use of gag orders after receiving NSLs in 2011 and 2013, while Cloudfare sued over NSLs received in 2012.
Andrew Crocker, an attorney for the Electronic Frontier Foundation, which represented the companies, called the ruling disappointing:
Several other tech companies have launched legal challenges against the use of NSLs. Recently, a US judge rejected the federal government’s attempt to halt a lawsuit from Twitter over the discussion of national security letters. Currently, companies may only disclose a range of NSLs they have received (such as within zero to 499 in a six-month period). Twitter wants to disclose the specific number they’ve received.
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