Not only does the Government have the power to issue secret subpoenas demanding your personal information from private companies—it has the power to prohibit those companies from speaking about what has taken place. These are “National Security Letters,” (NSLs) administrative orders that can be issued by the Government without prior court approval. And the gag orders attached to these letters are now being challenged before the Ninth Circuit as violations of the First Amendment.
On March 22, 2017, the Electronic Frontier Foundation presented oral argument before a Ninth Circuit panel, challenging the NSL’s gag orders as an unconstitutional restriction of free speech. The opening seconds of oral argument clearly displayed the gag order’s tongue-tying effects on speech. At the start, Judge Ikuta questioned Andrew Crocker, the EFF attorney, on which national security letters had not been mooted by the revealed identities of the plaintiffs. When Judge Ikuta pressed Crocker further on which exact national security letters were still in place, Crocker had to tactfully respond by noting that the terms of the gag orders prevented him from answering the question.
Mootness, however, was not the main issue before the court. Instead, the oral argument focused on whether NSL gag orders could satisfy the Freedman standards for prior restraints—i.e. whether the NSL gag orders are permissible restrictions of speech. This boiled down to two key issues: 1) whether these gag orders could potentially remain in place indefinitely, and 2) whether the government has met its burden to initiate court proceedings to justify its restrictions of speech.
This is not the first time that NSLs have been challenged in court. In 2007, the EFF and ACLU brought a challenge to an NSL issued to the Internet Archive. In Doe v. Mukasey, 549 F.3d 861 (2008), the Second Circuit ruled that the National Security Letter was not sufficiently narrowly tailored to withstand First Amendment scrutiny. Five years later, the EFF brought another successful challenge to NSLs in the Northern District of California in In re National Security Letter, 2013 WL 1095417 (2013). There, Judge Ilston set aside an NSL on the grounds that it violated the First Amendment. The government appealed Judge Ilston’s ruling to the Ninth Circuit, but before the Ninth Circuit could review the case, Congress revised the law regulating NSLs with the USA FREEDOM Act.
In 2017, the case has come back to the Ninth Circuit, and the question is whether or not the changes made by the USA FREEDOM Act are enough to prevent these NSLs from imposing indefinite or impermissible prior restraints on speech. The USA FREEDOM Act amended the law to allow recipients of NSLs to challenge the an NSL and its secrecy at any point in time. Upon such challenge, the government is required to initiate a judicial review of the need to maintain the NSL and its gag order.
The EFF, however, argued that such a setup forces the recipient to initiate the proceeding, which 1) the government has the burden of doing to justify a prior restraint, and 2) has the effect of chilling or intimidating recipients who might otherwise seek to speak. The Government, in turn, claims that it meets its burden by initiating court proceedings upon notice of a recipient’s challenge, and that asking a recipient to challenge an NSL that they dislike is a “de minimis,” or legally insignificant burden, similar to “sending a postcard.”
While it remains unclear which way the panel will rule, a 2-1 split seems possible. Judge Murguia expressed concern that this system still creates the possibility that gag orders remain permanently in place, and she likewise noted that the NSLs still placed the burden upon recipients, and not the Government. Judge Ikuta, on the other hand, seemed amenable to reading the law’s strict scrutiny requirement as a balancing test that the Government might claim to meet in the context of national security. This leaves Judge N. Randy Smith, the third member of the Ninth Circuit panel. Although Judge Smith acknowledged that the EFF’s arguments under the Freedman standard were “well taken,” he offered little challenge to the Government’s arguments claiming good faith termination of NSLs, or to their claim that the burden imposed was “de minimis.”
In its argument, the Government cited the fact that the FBI issues tens of thousands NSLs each year, emphasizing that only “relatively speaking, very few” challenges had been brought in court. To the Government, this meant that the recipients of NSLs in fact had no intent of speaking out about the NSLs they received. But you could easily read these facts as saying the exact opposite - that upon receiving a gag order, few dared to speak. If anything, the sheer number of NSLs that are issued each year should remind the Court that the potential speech-restricting effect of these NSLs would be anything but “de minimis.”