By Paul Elias
Associated Press
SAN FRANCISCO — Three years ago, a telecommunications company in the San Francisco Bay Area received a “national security letter” from the FBI demanding a customer’s information said to be related to a terrorism investigation. The letter also barred the company from telling anyone about the FBI’s demand.
Rather than comply as hundreds of its competitors, Internet service providers, financial institutions and other businesses have done when receiving such letters, the telecommunications company challenged the gag order with a lawsuit.
The case pits civil libertarians who say that the letters trample individual rights against government officials who maintain that secrecy is necessary tool to protect the country against terrorism and other threats.
On Wednesday, the 9th Circuit U.S. Court of Appeals will consider whether the “gag order” that comes with the thousands of national security letters the FBI sends annually is a constitutional violation of free speech rights.
A lower court last year ruled that the gag orders — and hence the letters themselves — were unconstitutional.
“The government has failed to show that the letters and the blanket non-disclosure policy serve the compelling need of national security,” and the gag order creates “too large a danger that speech is being unnecessarily restricted,” U.S. District Judge Susan Illston wrote.
Illston said she was also troubled by how little judicial review the gag orders receive when a recipient objects.
Judges can eliminate the gag order only if they have “no reason to believe that disclosure may endanger the national security of the United States, interfere with a criminal counter-terrorism, or counterintelligence investigation, interfere with diplomatic relations, or endanger the life or physical safety of any person,” Illston wrote.
Unlike warrants, the FBI can issue the letters without judicial review. The FBI has continued to send the letters while appealing Illston’s ruling.
In court papers, the FBI argues that the letters are an important tool to combat terrorism and the gag order is necessary to maintain the essential secrecy of its investigations.
“Public disclosure of actions by the government to investigate terrorism and espionage may allow individuals and groups . to take steps to evade detection, destroy evidence, mislead investigators, conceal future terrorist and foreign intelligence activities and speed plans for an attack,” federal prosecutors wrote in court filings.
Amid growing tension over disclosures of widespread government surveillance, an increasing number of large companies have begun to fight back since the unnamed company filed its lawsuit in 2011. The company won’t publicly identify itself in the case because it fears criminal charges for disobeying the gag rule.
The case has also attracted widespread attention from privacy advocates who complain individual rights are being violated.
“If the government wants your help in a terrorism investigation, you do have to go along it,” University of California, Los Angeles law professor Eugene Volokh said. “But you can complain to the media. You can complain on your blog. You can complain to your congressman. But with these national security letters, you are barred from doing even that. That’s an undue and substantial burden on speech.”
Volokh represents the Internet Archive research library service and others who have received the letters. They have filed court papers urging the 9th Circuit to declare the letters unconstitutional.
On Monday, Twitter filed a lawsuit challenging U.S. Department of Justice prohibitions on publishing the exact number of national security letters the company receives last year. Earlier this year, five tech companies reached agreement with federal officials for a “transparency report” to publish a range of national security letters received, but Twitter wants to disclose more details.
Earlier this year, the FBI withdrew a national security letter it sent Microsoft after the company filed a lawsuit. Google is also challenging receipt of several letters in court.
Several Internet companies including Google, Yahoo, Microsoft and Facebook filed court papers supporting the unnamed telecommunications challenge to the national security letters.
Since 2004, the FBI has issued more than 100,000 letters, according to figures from the Department of Justice.
Copyright 2014 The Associated Press