Appeals Court Vacates Lower Court’s Decision on National Security Letters

A federal appeals court has sent back to a lower court an appeal in a lawsuit about the way companies are allowed to publicize information about National Security Letters they receive.

The appeal consolidates three separate actions against the Attorney General that question whether the government’s restrictions on how companies can talk about NSLs violates the First Amendment. The actions have been going on for several years and have wound their way through several courts. The cases were appealed from the United States District Court for the Northern District of California and oral arguments in the appeal were held last October.

The plaintiffs, whose names are under seal, are challenging the federal government’s right to limit the amount of information they can disclose about NSLs. In general, organizations and individuals that receive NSLs, which are issued by the secret Foreign Intelligence Surveillance Court, are prohibited from disclosing that they received the letters. There are some exceptions, and companies are allowed to report publicly the number of NSLs they receive, but only in ranges of 1,000.

A number of companies, including Yahoo, Google, Microsoft, and others have challenged this provision and are seeking the ability to be more specific about the number of letters they receive. On June 2, while the U.S. Court of Appeals for the Ninth Circuit was considering the appeal in the unnamed parties’ suits against the AG, Congress amended the part of the Patriot Act that concerns NSLs. As a result, the court is remanding the case back to the district court.

These consolidated appeals were submitted for decision following oralargument on October 8, 2014. On June 2, 2015, while these appeals were pending, Congress amended 18 U.S.C. § 2709 and 18 U.S.C. § 3511, the statutes at issue in these appeals,” the court’s order, which was unsealed today, says.

“In light of the significant changes to the statutes, we conclude that a remand to the district court is appropriate so the district court may address the recipients’ challenges to the revised statutes.”

The use of NSLs has come under sharp criticism in the aftermath of the Snowden disclosures. The secret nature of the court that issues the letters and the letters themselves worries privacy advocates. The group of technology companies challenging the restrictions on the disclosure of NSLs says users have a right to know how often these orders are used.

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