A federal court in Washington, D.C., has unsealed a batch of legal documents that shed light on an early test of a 2015 law the allows companies to challenge gag orders in national security investigations.
The dispute began in February 2016, when a service provider asked for judicial review of a gag order preventing the company from disclosing that it had received two FBI national security letters, which are administrative subpoenas that don’t require court approval. They are typically accompanied by a nondisclosure requirement.
The FBI sent national security letters for information 9,146 people in 2015, the most recent year available, in counterintelligence and terrorism investigations.
The two letters, both years old, sought information from the company associated with two customer accounts, according to the filings unsealed earlier this month by U.S. District Judge James Boasberg, who presided over the dispute and issued a redacted ruling last summer.
The court documents, in describing the legal battle that led up to his decision, conceal the name of the company but say it “offers electronic communication services to its customers” and publishes a “transparency report” twice a year that reveals the number of government requests for information it receives. Google, Twitter, Facebook and Yahoo provide semiannual reports on such requests.
The review by Judge Boasberg was among the first to surface publicly after Congress passed the USA Freedom Act of 2015. The law, establishing the right to court review of gag orders, followed multiple legal challenges and a 2008 ruling by a federal appeals court in New York. Last June, Yahoo was the first company to disclose national security letters after a review triggered by the USA Freedom Act. Google became the second in December.
Justice Department lawyers sought a ruling from Judge Boasberg that would maintain the gag order on the company until the government or a court found it was no longer necessary, saying disclosure of the letters would pose danger to national security or the physical safety of a person, or interfere with diplomatic relations or an ongoing investigation.
The nondisclosure requirement would survive “even the strictest scrutiny” required by the First Amendment, Justice Department lawyers wrote in a legal brief, “for it is designed to further the compelling governmental and public interest in effectively detecting and preventing terrorism and foreign espionage.”
A 2015 policy issued by the attorney general requires the FBI to review the necessity of gag orders at the close of investigations and on the three-year anniversary of their initiation.
Perkins Coie LLP lawyers representing the company said the government’s arguments and the existing policy could lead to gag orders of unlimited duration that courts have held to be “unconstitutional in any context,” including national security. They asked Judge Boasberg to require the government to review the gag order every year, according to court documents.
The Justice Department lawyers, in response, said an order requiring annual reviews would entourage more companies to challenge gag orders and cost the FBI more than $1 million to reconfigure its databases.
“If the government does not have the resources to manage nondisclosure orders of limited duration, the proper remedy is either more government resources or fewer nondisclosure orders, but not less speech,” lawyers for the company replied.
Judge Boasberg, staking out a middle ground, ordered the FBI to review its justification for the nondisclosure requirement every three years and to notify him of its decision after each review, until the government withdraws the gag order.
