Privacy advocate: Government lie on gag orders undermines case

A privacy advocate thinks it has caught the government in a lie in its fight against “gag orders” preventing companies from discussing secret government requests for customer data.

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The Electronic Frontier Foundation (EFF) said a letter unsealed in federal court Thursday “significantly undermines its case.”

In the letter, the government said it misspoke during oral arguments in October, when it claimed companies could openly discuss government national security requests.

“It confirms our position that these gags are really inhibiting the public debate,” said EFF Legal Director Cindy Cohn in an interview.

The EFF is asking the Ninth Circuit Court of Appeals to uphold a lower court ruling that the gag orders violate the First Amendment.

Privacy advocates and the tech sector have been protesting the gag orders that come with national security letters (NSLs). NSLs allow the FBI to request consumer data, with no judicial approval, from Internet service providers and telecommunication companies.

The FBI has used these letters for decades, but has leaned on them more heavily since the 2001 Patriot Act and as the digital age exploded. In fiscal 2012, President Obama’s intelligence review group found the bureau had issued 21,000 of these letters.

Federal officials defend the letters as essential to early stages of investigations. If the requests were made public, they argue, companies risk tipping off terrorists of an impending arrest.

During oral arguments in early October, the government claimed a company “could publicly discuss the fact that it had received one or more NSLs and could discuss the quality of the specific NSL(s) that it had received.”

“That suggestion was mistaken,” the government’s letter said. Gag orders “apply, without distinction, to both the content of the NSLs and to the very fact of having received one.”

“We were quite surprised during oral argument to see the government really shift gears,” Cohn said. “This was their play to try and save the statute.”

Cohn said the government’s backtracking damages its case that the gag orders don’t prevent tech companies from participating in the public debate.

In its ruling, a district court worried the broadness of gag orders inhibited companies’ free speech.

The letter “basically is the government conceding the district court was right,” Cohn said.

Since former National Security Agency contractor Edward Snowden disclosed many of these intelligence-gathering practices, tech companies have complained the requests are vague and pushed the government to let them reveal more information.

The government relented, in part, allowing the companies to report on the requests, albeit with a six-month lag and in ranges of a thousand.

But the EFF and many in the tech sector think the practice should be significantly curtailed. Google, Facebook, Microsoft and Yahoo have all filed briefs on the EFF’s behalf in its current case.

The gags prevent these companies from taking specific NSL grievances to Congress, Cohn said.

“My clients would like to participate in this debate,” Cohn said about the two unidentified companies the EFF is representing in the case. “They’re the experts,” she argued, “yet they can't testify at a congressional hearing and can't talk from a position of authority.”

The USA Freedom Act, which includes a number of intelligence-sector reforms, would codify the current NSL process, but not make significant changes to the use and scope of the letters.

A version of the bill passed the House in May and a Senate version is expected to come to the floor within weeks.

Although the EFF supports the measure, “We may end up with a bill that’s not as strong as it could be if my clients participated in the debate,” Cohn said.