Wired: Courts Back Government After Tech Company Challenges National Security Letter Gag Rule

Wired’s ThreatLevel blog is digging into the story of technology companies pushing back against the government’s use of super-secret National Security Letters (NSLs) to collect information on “persons of interest” to the FBI earlier this year. 

Wired’s ThreatLevel blog is digging into the story of technology companies pushing back against the government’s use of super-secret National Security Letters (NSLs) to collect information on “persons of interest” to the FBI earlier this year. 

According to the Wired account, an unnamed company – very likely in the technology or communications industry- is fighting a government attempt to secretly collect information on its subscribers. The company, like a number before it, has petitioned the FBI over the NSL’s explicit gag order, saying it would like to notify its customer(s) of the request from the FBI.

The federal government, in turn, has taken the issue to court: requesting that the company be forced to follow the FBI’s gag-order, arguing that the contents of the NSL could result in danger to the national security of the United States, as wells as interfere with investigations and/or diplomatic relations. And, on Tuesday, a federal judge in the Eastern District of Virginia stood with the government: ordering the NSL and other supporting documents to be kept under seal.  

As Wired reports, the handful of court battles challenging the First Amendment constitutionality of these gag orders have chipped away at some of the harsher terms of NSLs. Despite this, the letters remain a valuable tool for the FBI and other law enforcement to gather all manner of information on U.S. citizens and residents. A report from the Congressional Research Service found that many of the NSLs issued ask companies or service providers to turn over transactional records, subscriber data, phone numbers, email addresses, browsing history, sources and destinations of wire communications (IP addresses). The recipients of NSLs are expected to adhere to a gag order.

Wired claims that NSLs have become commonplace in the post-9/11, Patriot Act America. In 2010 alone, Zetter reports that the FBI sent more than 24,000 such letters to various Internet Service providers and other companies concerning some 14,000 individuals. These letters typically go unreported. The recipients of NSLs quietly provide what is requested, and neither you nor I ever hear a peep about it.

You can read Zetter’s report at Wired.com. That report includes the government’s petition and the court’s response to that petition as well as some excellent context.

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  • SF on

    Take it all the way to the Supreme Court! Let the world know where we stand on this issue of essentially snooping on people with no judicial oversight.

  • Jim Peak on

    I believe you're mis-characterizing this. There just WAS judicial oversight- and the judge made a decision.  Perhaps you disagree with the judge, but that doesn't mean there was "no judicial oversight."

    Follow the hyperlink above on the phrase, "...stood with the government," and you'll see that the judge concluded, in part, that in this situation, "... the documents identify information which, if publicly disclosed, may result in a danger to the national security ofthe United States, interference with a criminal, counterterrorism, or counterintelligence investigation, interference with diplomatic relations, or danger to the life or physical safety of any person;(ii) there is no less drastic alternative to placing the documents under seal that will prevent disclosure of such information..."  

    Of course, the beauty of America is that things CAN be appealed all the way to the Supreme Court.  However, whether or not this case SHOULD be appealed is hardly something on which either you or I can make a studied decision- since neither of us know the specifics.  The case may be one in which the use of an NLS is clearly justified- as the judge concluded.


  • Jim Peak on

    (Note: the previous comment, beginning, "I believe you're mis-characterizing this," is speaking to the "SF" post of 3/16/2012- NOT to the Threatpost article itself.  It was the post that was, IMO, somewhat unbalanced.  The article provided a nicely balanced description- nice job.)

  • Anonymous on

    Who thinks the Roberts Court would reverse the lower courts deference to the FBI?

    Use unbreakable encryption and anonymizers, if you feel it necessary.

  • PB on

    I have lost track of it, but I read an excellent article written by a politician from years ago which talked about the cycle where citizens demand security (safety, the "warm fuzzies") and exchange their freedom. This continues until they decide they want their freedom and then they fight the institutions (government) that they asked for the security to get their freedom, ut giving up their security.  This is true because to have what we call "security", we cannot have true freedom and vice versa.

    Unfortunately, we are on that first upswing and I suspect it is going to continue to get worse before it gets better. Remember the fight on communism and all the finger-pointing and accusations between neighbors etc.?


  • Randy Grein on

    And of course it was Ben Franklin who commented on 'Those who give up freedom for security...'.

    Part of the problem here is that Jim is incorrect - there is no Judicial oversight for any one investigation; the FBI engages in widespread information aquisition (anyone remember Carnivore, or that it is an ongoing project?) without review. Given the propensity of all governments to claim 'national security' to justify egregious violations of privacy I cannot accept such bland pronouncements. Further, given what we have already seen from recent Administrations (Nixon, GW Bush) attempting to cover actions in the name of 'national security' I am not willing to permit a blanket permission for domestic spying to stand.


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