One of the reforms included in the USA Freedom Act is the actual ability to challenge National Security Letter gag orders. Prior to the passage of this bill, recipients were limited to challenging gag orders once per year — challenges that rarely succeeded. The process is no longer restricted to annual challenges, but many recipients won’t be aware of this fact because the FBI hasn’t been interested in telling them.
The Internet Archive — with the assistance of the EFF — has managed to lift a gag order on an NSL it received. This NSL [PDF], like the thousands of NSLs the FBI issues each year, came with outdated information regarding recipients’ options for challenging gag orders.
The NSL we received includes incorrect and outdated information regarding the options available to a recipient of an NSL to challenge its gag. Specifically, the NSL states that such a challenge can only be issued once a year. But in 2015, Congress did away with that annual limitation and made it easier to challenge gag orders. The FBI has confirmed that the error was part of a standard NSL template and other providers received NSLs with the same significant error. We don’t know how many, but it is possibly in the thousands (according to the FBI, they sent out around 13,000 NSLs last year). How many recipients might have delayed or even been deterred from issuing challenges due to this error?
Having been caught using outdated boilerplate, the FBI will now be sending out thousands of correction letters [PDF]. It’s not as though the FBI wasn’t aware of the changes in the laws governing NSLs. It likely found it more conducive to its secrecy aims to allow the old boilerplate to remain until recipients caught on.
Not only will the FBI be updating its NSL boilerplate, but it has apparently been shamed into transparency… at least in this particular case. The gag order on this NSL has been dropped and the Internet Archive is allowed to publish the redacted request.
The request asks for all personal information related to the targeted accounts from “inception to present.” But there’s another problem with the request which goes beyond outdated boilerplate. As the EFF’s letter to the FBI [PDF] points out, the Internet Archive isn’t the sort of entity the FBI can actually serve an NSL to.
18 U.S.C. 2709 is inapplicable to the Archive in this matter because the Archive is a library. Under 2709(g), the FBI cannot issue an NSL demanding records — or imposing a nondisclosure requirement — to libraries unless they are providers of wire or electronic communications services. The NSL does not specify which of the Archive’s services it seeks records from and thus does not identify any context in which the Archive is a provider of a wire or electronic communication service.
The letter also points out that the FBI’s gag order is unconstitutional prior restraint, something that runs contrary to the First Amendment. Of course, it’s one thing for an NSL recipient to make this allegation. It’s quite another to have it confirmed by a federal court. The EFF’s constitutional challenge of NSL gag orders is currently awaiting review by the Ninth Circuit Court of Appeals. Whatever conclusion the court arrives at, there’s little doubt that it will ultimately make its way to the US Supreme Court. Whether or not the Supreme Court decides to address it is likely still at least a year or two away.
But the voluntary lifting of a gag order by the FBI is a positive development — one that suggests the more these orders are challenged, the more often the government will discover its demands for indefinite secrecy are rarely supported by the facts of the case.