The FBI will be allowed to continue issuing National Security Letters (NSLs) under nondisclosure laws according to a ruling by a San Francisco U.S. federal appeals court.
Content distribution firm CloudFlare and phone network operator CREDO Mobile appealed the case in an attempt to regain the right to inform customers of five NSLs they received between 2011 and 2013.
NSLs are subpoenas issued by the government which demand the disclosure of customer records, and can be sent to service providers without a warrant. They are usually sent with a gag order preventing the service provider from informing the target, or customer, that their information is being accessed. It’s these gag orders which privacy advocates and major tech companies including Microsoft, Apple, and Twitter have been railing against.
Tens of thousands of NSLs are issued each year and the accompanying gag orders can be indefinite. The tech companies were represented by the Electronic Frontier Foundation who sued the government on the basis that the gag orders violate the First Amendment of the U.S. Constitution’s free speech protections.
The three-judge panel on the 9th U.S. Circuit Court of Appeals in San Francisco unanimously sided with the lower court ruling. The next step would be to take the case to the U.S. Supreme Court, but EFF attorney Andrew Crocker said no decision has yet been made on next steps and went as far as to call the ruling disappointing.
Judge Sandra Ikuta said the gag orders meet a compelling U.S. government interest, are sufficiently narrow, and allow for appropriate judicial review. Ikuta pointed out that changes to the law passed by Congress in 2015 improved oversight of NSL use.
Lawmakers have recently made attempts to expand the kinds of records NSLs can request. One such initiative only narrowly failed in the U.S. Senate last June. The expansion plans would have allowed the FBI to request senders and recipients of emails, some browser history and social media log-in data.
New transparency laws which have allowed companies to publish some NSLs in recent years have draw attention and scrutiny from privacy groups, who will undoubtedly continue to follow and combat the ensuing attempts to expand the subpoena’s power.