In a decision that has drawn the ire of technology providers and privacy advocates, a United States appeals court has ruled that National Security Letters and the gag orders that often come with them don’t violate the First Amendment.
The ruling came down Monday and from the Ninth Circuit Court of Appeals and the result is that the FBI can continue to issue NSLs accompanied by non-disclosure requirements to ISPs, mobile network providers, and other companies The decision upholds a ruling from a the U.S. District Court for the Northern District of California in a case that began four years ago after Cloudflare and Credo Mobile challenged the constitutionality of NSLs and gag orders.
“Certain recipients of these NSLs claim that the nondisclosure requirement violates their First Amendment rights. We hold that the nondisclosure requirement in 18 U.S.C. § 2709(c) is a content-based restriction on speech that is subject to strict scrutiny, and that the nondisclosure requirement withstands such scrutiny. Accordingly, we affirm,” the appeals court said in its ruling.
NSLs typically are used to get sensitive information as part of a terror investigation, and many times they include a gag order that prevents the recipient from even disclosing that it received the letter for some period of time. Companies are allowed to disclose the number of NSLs they receive in broad ranges, but Cloudflare, Credo, and others have pushed back on the legality of the gag orders themselves.
“Such gag orders hamper transparency efforts, and limit companies’ ability to participate in the political process around surveillance reform,” Doug Kramer, general counsel at Cloudflare, said in a post on the decision.
“Along with our co-petitioner, CREDO Mobile, Cloudflare challenged the NSL gag orders as a ‘prior restraint’ on free speech. In First Amendment law, prior restraints are judicial orders or administrative rules that function to suppress speech before it ever takes place. There is a heavy presumption against the constitutionality of prior restraints, but they can be justified in narrowly defined circumstances or if the restraint follows certain procedural safeguards. In the context of NSLs, we considered those safeguards to be lacking.”
Kramer said that Cloudflare may consider petitioning the U.S. Supreme Court to take the case.