Anonymous Telecom, Internet Companies Argue Gag Orders Unconstitutional, Back Twitter

An anonymous telecom company and an Internet company backed Twitter in the social networking site’s legal fight for the right to release information related to national security letters (NSLs) it receives. The anonymous companies filed an amicus brief Tuesday arguing that gag orders are an “unconstitutional prior restraint on free speech and a serious infringement of their First Amendment Rights.” The Electronic Frontier Foundation (EFF), which is representing the anonymous companies, provided the brief. Twitter filed a lawsuit in October arguing that “users deserved to know certain basic facts about NSLs that the government did or did not serve on the social media company,” EFF said. NSLs issued by the federal government almost always contain a gag order, prohibiting the companies from notifying customers or the public that a demand has been made, the group said. The anonymous telecom and Internet companies involved in this case “want to go public with some details of their fights against NSLs,” such as their corporate identities and “what they have done to protect customers from unreasonable collection of information,” EFF said. The government argues that identifying the companies that received an NSL “might endanger national security,” EFF said. Several courts, including the Supreme Court, recognize that “a prior restraint -- preventing speech in the first instance instead of imposing a penalty after the speech -- is a serious and dangerous step," EFF Legal Fellow Andrew Crocker said. "Yet with NSLs, we have prior restraints imposed at the government's whim, without any judicial oversight or review. Our clients want to talk about their experience with these NSLs, but the government is unconstitutionally shielding itself from any criticism or critique of their procedures." A San Francisco-based federal district court judge agreed with EFF in 2013 that the NSL provisions were unconstitutional and prohibited any future NSLs and accompanying gag orders, EFF said. That ruling was stayed pending appeal, allowing additional NSLs to be distributed while the case makes its way through the 9th U.S. Circuit Court of Appeals.