FBI defends secretive spy program in appeals court

Lawyers for a digital rights group squared off with federal attorneys in a San Francisco courthouse on Wednesday during an appeals hearing that will determine whether the government can serve telecom providers with gag orders when requesting user data.

Last year, United States District Judge Susan Illston ruled that the FBI’s use of administrative subpoenas known as National Security Letters, or NSLs, to compel telecoms for information about customers is unconstitutional, and faulted the bureau’s inclusion of gag orders with these requests as being in violation of First Amendment protections as well as the separation of powers principles. Federal prosecutors soon after appealed her ruling, however, setting the stage for the Ninth Circuit to hear oral arguments during Wednesday’s hearing in the city by the bay.

According to the government’s lawyers, national security concerns require that the FBI has the ability to force electronic communication providers into handing over user-specific information without the targeted individual ever being told, even calling that function a tool “to protect against international terrorism and clandestine intelligence activities” in a January 2014 brief. Attorneys for the locally-based Electronic Frontier Foundation have successfully argued already against the point-of-view of Justice Department lawyers, though, and hope to prove before the Ninth Circuit that, as one statement from the group reads, NSLs combined with mandatory nondisclosure orders “unilaterally gag recipients and prevent them from criticizing such actions publicly” and “permit the FBI to wield enormous power and to operate without meaningful checks.”

NSLs, the EFF wrote in a Feb. 2014 filing, “empower the FBI, without prior judicial authorization, to both demand customer records directly from Internet and telecommunication providers and to issue permanent gag orders that prevent the recipients from disclosing anything about the government's demand.”

Indeed, the name of the telecom represented in court by the EFF has been under seal since the group first took the case on in 2011 when the firm wanted to fend off an NSL it believed to be illegal. The unknown entity has since received two additional NSLs, but details pertaining to those, as with many aspects of the case, remain largely unknown. Although the Ninth Circuit streamed live audio from Wednesday’s proceedings on its official website, the feed was terminated when it was time for the EFF and DOJ attorneys to present to arguments.

Nevertheless, eyewitnesses to Wednesday’s hearing live-tweeted the legal back-and-forth from the courthouse as it unfolded, reporting in 140-character blurbs about the already largely redacted case concerning an unidentified appellate and the government’s efforts to keep that NSL recipient from speaking up.

According to those witnesses, attorneys for the EFF and DOJ alike seemed to agree that, regardless of what they think of them, NSLs with gag orders are being issued all too frequently.

"The FBI would not be able to function if it had to look at every single NSL and determine whether confidentiality had to stay,” an attorney for the government said at one point in the hearing, according to a tweet sent by SF Weekly journalist Kate Conger.

Wow. DOJ: "The FBI would not be able to function if it had to look at every single #NSL and determine whether confidentiality had to stay."

— Kate Conger (@kateconger) October 8, 2014

Tweeting on behalf of the EFF, an account associated with the group wrote that staff attorney Kurt Opsahl argued before the court that gagging service providers keeps a wide swath of companies from being able to acknowledge, let alone discuss, surveillance efforts that directly impact how their product is used and perceived.

Internet Service Providers, or ISPS, “might want to warn others about over-broad requests, issue transparency reports, etc,” the EFF account tweeted. “NSL gag doesn't even require a court.”

EFF: ISPs might want to warn others about over-broad requests, issue transparency reports, etc. #NSL gag doesn't even require a court.

— EFF Live Tweets (@EFFLive) October 8, 2014

Coincidentally, attorneys for web giant Twitter argued in a lawsuit filed only one day earlier this week that the government’s restrictions on disclosing the number of NSLs a company receives “constitute an unconstitutional prior restraint and content-based restriction on, and government viewpoint discrimination against, Twitter’s right to speak about information of national and global public concern.”

“Twitter is entitled under the First Amendment to respond to its users’ concerns and to the statements of US government officials by providing more complete information about the limited scope of US government surveillance of Twitter user accounts — including what types of legal process have not been received by Twitter,” attorneys for the company argued in paperwork filed Tuesday.

According to tweets sent by former EFF attorney Matt Zimmerman during Wednesday’s hearing, one of the Ninth Circuit panel justices, Judge Sandra Segal Ikuta, raised concerns that letting telecos like the one represented by the rights group disclose greater details about the NSLs they’re served “might give away sensitive info” if a small-time ISP identifies how often it receives such orders.

Ikuta focusing on govt argument that small ISPs might give away sensitive info by acknowledging receipt. #nsl

— Matt Zimmerman (@zim) October 8, 2014

But Cathy Gellis, an attorney in attendance at Wednesday hearing, said Ophsal acknowledged that companies that receive NSLs are provided only with vague windows with regards to disclosing how many orders they receive in a year time. Because a company served with 900 NSLs in a given year reports publically the same statistic as a firm served with none, “only recipients who got 1000+ could effectively speak,” Gellis said the EFF attorney argued.

.@kurtopsahl points out that when the first transparency band for #nsl is 0-999, only recipients who got 1000+ could effectively speak.

— Cathy Gellis (@CathyGellis) October 8, 2014

And whereas the EFF has argued previously in paperwork filed with the Ninth Circuit that a “well-documented history of FBI abuse of NSLs” has marred the reputation associated with the requests, attorneys for the DOJ assured the court on Wednesday, according to Twitter users, that the FBI is making “great strides” with regards to fixing those problems. Previously, the EFF has cited internal DOJ reports in which it was revealed that 22 percent of the NSLs filed by one field office contained one or more possible violations that had never been reported during a two year span, and that, in another instance, unauthorized personnel signed off on at least 739 NSLs in another.

“EFF asks the court to invalidate the entire #NSL statute. The unconstitutional gag is not severable, and the entire law must fall,” the group tweeted during this week’s hearing.