The way that National Security Letters are approved and used is one of the government’s more opaque processes. Now, you can add some more confusion into the mix, courtesy of some new comments from the FBI about when recipients are able to disclose the fact that they have received an NSL.
More than a year ago, President Barack Obama told the attorney general “to amend how we use National Security Letters so that [their] secrecy will not be indefinite”. National Security Letters are used by the FBI to gather information from individuals and organizations during national security investigations. Typically, each NSL comes with an order prohibiting the recipient from disclosing that he received the letter. This has been one of the more controversial elements of the NSL program, as it can prevent recipients from seeking help from others regarding their cases.
Recently, the Office of the Director of National Intelligence issued a report disclosing the intelligence community’s progress in addressing the changes that Obama asked the various agencies to make in their collection and analysis programs. In the report, the ODNI said that the FBI would change the length of time the NSL gag orders run.
“In response to the President’s new direction, the FBI will now presumptively terminate National Security Letter nondisclosure orders at the earlier of three years after the opening of a fully predicated investigation or the investigation’s close,” the report says.
“Continued nondisclosures orders beyond this period are permitted only if a Special Agent in Charge or a Deputy Assistant Director determines that the statutory standards for nondisclosure continue to be satisfied and that the case agent has justified, in writing, why continued nondisclosure is appropriate.”
However, in a letter unsealed this week, an attorney from the Department of Justice said that the bureau is still considering how that process is going to work.
“The FBI is in the process of formulating and drafting guidelines for the implementation of the policy described in the Report. Because this process is not yet complete, the potential applicability of the new policy to the NSLs at issue in the above-referenced appeals remains to be determined. We will advise the Court when this additional information becomes available,” Katherine T. Allen, an attorney in the civil division at the DoJ wrote in the letter.
The confusion on how the FBI plans to handle NSL gag orders in the future is not sitting well with the EFF, which is involved in some law suits regarding the use of the letters.
“The government should not be telling everyone that reforms are in place “now,” when the truth is something different,” Nadia Kayyali of the EFF wrote in a blog post.
“Even if this new policy was actually implemented, it would not solve the deep constitutional problems with National Security Letters.”