Justice Department Admits It Lied To Appeals Court: National Security Letters

[Mike]

Back in October, we wrote about the appeal on the legality of National Security Letters (NSLs), which are secretive filings from law enforcement demanding information with a perpetual gag order. In 2013, a district court had declared that NSLs were unconstitutional, but stayed that decision pending appeal. While the appeals court judges seemed skeptical, it still wasn't clear how they would rule. So it's interesting to see that the Justice Department has just admitted that it misled the court on some rather important points during the oral arguments.

In particular, with regards to the First Amendment question, the DOJ had insisted that companies could discuss the "quality" of the NSLs it had received, explaining it this way:

There is a category that the deputy attorney general provided that recipients can make disclosures and there is a category of 0-249 so recipients can disclose that. They’re allowed to disclose within these bands. And they can fully participate in the public debate, they can say as we have disclosed we’re in that band 0-249 and it can say the very things that [EFF Senior Staff Attorney Kurt Opsahl] said they can’t. They can say and we think the government is asking for too much in many of the NSLs we received and we want to talk to our fellow recipients and see if they too have felt that there’s too much and we think Congress ought to do something about that. They can do all of that. There’s nothing that says that they can’t comment, they’re allowed to make specific comments about quantity, there’s absolutely no ban on them commenting on the quality of those they’ve received.

Except that's not true, and it was clearly not true at the time. The EFF asked the DOJ to explain this statement in light of other statements that completely contradicted that claim, and suddenly the DOJ realized that it had been lying to the court on a rather important point. So it has now retracted those comments, claiming they were an "inadvertent misstatement."

In the course of discussing disclosures described in this letter, approximately 49 minutes into the Court's recording of the argument, government counsel indicated that if a company discloses that it is in one of these two bands starting with zero, it 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 district court correctly noted that “the NSL nondisclosure provisions . . . apply, without distinction, to both the content of the NSLs and to the very fact of having received one." .... The fact that a company may disclose that it has received 0 - 249 national security processes or 0 - 999 NSLs in a given period does not, by itself, allow that company to disclose that it has actually received one or more NSLs; the lower end of these bands was set at 0, rather than 1, in order to avoid such disclosures.

That last point is pretty interesting and probably explains why the Apple warrant canary changed. It wasn't about NSLs, but Patriot Act Section 215 requests (bulk records requests), but those fall into the "national security processes" list. So, it certainly sounds like Apple may have "violated" that agreement by originally saying it had received none, and once alerted to this fact, adjusted its language.

But, that's kind of crazy, and reveals just how problematic this setup is. Basically, the DOJ seems to be arguing that even if you haven't received any such requests, you can't say so, because you can only say within the 0 to 249 category. Thus, the DOJ appears to believe that all companies are bound by a gag order that they never received. Now that creates a rather serious First Amendment issue...

Originally Published: Fri, 14 Nov 2014 17:17:27 GMT
source