FBI’s Gag Orders to Internet Companies Are Constitutional

The FBI sometimes seeks the aid of private tech companies. Those companies have sometimes pushed back. Today’s case is the latest chapter.

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The FBI conducts national-security investigations. No real surprise there. To help them, a federal law authorizes the FBI to send a “national security letter” or “NSL” to a “wire or electronic communication service provider” requesting that the provider give the FBI information about a subscriber (e.g., name & address), including billing records, communication records, etc. These NSLs have the same practical force as court-issued subpoenas. If the provider wants to challenge the NSL, it tells the FBI and the parties go to court within 30 days.

The government issues tens of thousands of NSLs each year, an average of 60 NSLs a day. We’re guessing that the process works something like this: Let’s say a military base gets a telephonic bomb threat. They tell the FBI, and give the FBI the cell-phone number of the person that called. The FBI might then send an NSL to the cell-phone company (for example, Verizon or T-Mobile) asking for all the info about the person/owner of that cell phone number.

That same federal law that authorizes the FBI to issue NSLs also allows the FBI to order the company to refrain from disclosing the fact that the FBI requested the information in the first place. This is, in effect, a gag order. (“Give us the data, and don’t tell anyone that we asked.”) But the law only allows the FBI to impose this gag order if disclosure would endanger national security or a someone’s physical safety, or interfere with an ongoing investigation or diplomatic relations.

Two companies (CREDO Mobile and CloudFlare) that had received NSLs sued the FBI, arguing that the gag orders violate their First Amendment rights. The Ninth Circuit ruled today for the FBI, and found the law and the FBI’s practices constitutional. Although the court found that the law was a content-based restriction on speech, the law was “narrowly tailored” to serve a “compelling” government interest–national security. The court also rejected the companies’ arguments that they were subject to an unconstitutional “prior restraint” on their speech. The court analogized this case to other cases that upheld similar confidentiality requirements, such as in grand-jury proceedings.

The two companies could appeal to the Supreme Court. We’ll be on the lookout to see if they do.

Case: In re Nat’l Sec. Letter, No. 16-16067 (9th Cir. July 17, 2017) (opinion here)

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