In the Ninth Circuit Court in San Francisco Wednesday morning, the Electronic Frontier Foundation’s (EFF) Kurt Opsahl urged the federal appeals court to uphold a lower court’s ruling that national security letters (NSLs) are unconstitutional. Regardless whether the ruling is upheld, the matter of NSLs is all but inevitably bound to end up on the dockets of the United States Supreme Court, which will have the final word.
The appeals process that led to today’s hearing is a convoluted one, consisting of three separate rulings. One unnamed mobile service provider received an NSL seeking customer information. The client challenged the letter and a judge ruled that the NSL was unconstitutional on two grounds: gag orders almost always issued in concert with NSLs violate the First Amendment; and that the lack of judicial oversight regarding NSLs is a violation of the separation of powers.
“The statutes governing National Security Letters empower the FBI, without prior judicial authorization, to both demand customer records directly from Internet and telecommunication providers and to issue permanent gag orders that prevent the recipients from disclosing anything about the government’s demand,” the EFF explained in a briefing [PDF] issued to the circuit court.
The EFF explained that the FBI is allowed to “directly impose content-based prior restraints on speech and then insulates that Executive action from any kind of meaningful judicial review.”
Meanwhile, the same client referenced above received two more NSLs, which the court decided could be enforced. A second client received a NSL, attempted to fight it, but was also thwarted by a court ruling that the NSL could be enforced.
So in court Wednesday, the EFF simultaneously defended one ruling, which was under appeal by the government, while it also appealed two other rulings in favor of NSL enforcement, which are being defended by the Justice Department.
For it’s part, Justice Department attorney Douglas Letter described NSLs to the Ninth Circuit’s panel of judges as “an extremely useful tool to use,” according to a Wall Street Journal report.
In an interview with the EFF, legal fellow Andrew Crocker indicated to Threatpost that he is optimistic, but that ultimately, the Supreme Court would decide the matter of NSLs in the end.
“I think that the judges asked some really strong questions of the government that indicated that they were very perceptive to the free speech rights at interest here and that they understood our position and were sympathetic to it,” Crocker said. “You can never make any hard and fast statements about how an oral argument goes, but I think that signs look pretty good.”
He said the trio of Ninth Circuit judges seemed deeply interested in examining how the one court’s interpretation of relevant statutes allowing the continued issuance of NSLs conflicted with prior court’s ruling that NSLs are unconstitutional.
The federal appeals judges also honed in on whether a recent easement in the terms of gag orders, namely that recipients can report receiving NSLs in broad bands of numbers, was enough to bypass previous decisions regarding the First Amendment constitutionality of gag orders.
As a point of reference, per an EFF explanation of NSLs, “[they] include gag orders that prevent the recipient from discussing the NSL with the media or even with friends and family.” Recipients can contact a lawyer, but the lawyer is then bound by the terms of the gag order as well.
Opsahl, the EFF staff attorney that actually delivered the oral arguments yesterday, claimed that reporting a band of NSLs received – say from zero to 999 – is very different than saying either ‘I did receive a NSL’ or ‘I didn’t receive an NSL.’ He went on to explain that beyond that, such limitations are hindering service providers from saying the sorts of things they claim they want to say about NSLs.
If a company were to decide not to comply with the demands made in an NSL, Crocker explained, it would be violating the stature and could be subject to substantial criminal penalties. The government could go to court and get an injunction against the company and hold it in contempt. The company could also be charged with the general crime of obstruction of justice, which carries a five year jail-term penalty.
For the EFF, this is one component of a larger mission advocating for transparency in government, particularly in national security process. They have a number of other cases against the NSA challenging other forms of national security and law enforcement process.
In particular to NSLs, the EFF argued in a pair of court briefings that the FBI and other law enforcement have a wide variety of other tools available that they can deploy – with proper oversight – to obtain the same information they sought in the cases at question here.
Now both sides of the case will wait for the court to rule, which could take several months. Eventually the court will weigh the oral arguments along with the papers submitted by the EFF and they will take those under advisement and issue and opinion.
If the court rules in favor of the EFF, depending on specifics, the judges may uphold the initial district court ruling or they might come up with some other limited remedy of some sort. As a point of civic process, there is a chance the Ninth Circuit could rehear the case “en banc,” meaning all of the Ninth circuit judges would hear the case rather than a panel of them. This would only occur, however, if the three-judge panel issues an opinion that conflicts with another opinion from the same court.
Bottom line though, Crocker explained, if the EFF wins, it’s pretty certain that the government would appeal to the Supreme Court. If they lose, again, it would depend on the specifics of the ruling, but the EFF could appeal to the Supreme Court too.