EFF Will Appeal Ruling That Keeps Providers Mum About Getting NSL Letters

The Electronic Frontier Foundation said it will appeal a decision by a federal judge that the FBI isn't violating the Constitution by issuing National Security Letters (NSLs) with accompanying gag orders that prohibit electronic communications providers from even revealing they received such a letter. EFF said in a Thursday news release it will appeal the March 29 decision, which was unsealed this week, to the 9th U.S. Circuit Court of Appeals. The privacy group, representing two unidentified providers, challenged the NSL statutes beginning in 2011. “This government silencing means the service providers cannot issue open and honest transparency reports and can’t share their experiences as part of the ongoing public debate over NSLs and their potential for abuse," said EFF Deputy Executive Director Kurt Opsahl in the release. "Despite this setback, we will take this fight to the appeals court, again, to combat USA FREEDOM’s unconstitutional NSL provisions." One of EFF's clients has been gagged since 2011, he said. NSLs are a type of administrative subpoena that seeks subscriber information that's relevant to a terrorism investigation or clandestine activity, U.S. District Judge Susan Illston said in her ruling. EFF said Illston ruled in 2013 that NSL provision was unconstitutional, but the government appealed to the 9th Circuit, which said changes made by the USA Freedom Act enacted in 2015 require a new review by the U.S. District Court in San Francisco. Illston's unsealed ruling said the USA Freedom Act amendments "cure the deficiencies ... and that as amended, the NSL statutes satisfy constitutional requirements." She also said the government justified in three NSL applications that disclosure would endanger U.S. national security and create other harms. But she said the government couldn't justify a fourth application. "However, the client still cannot identify itself because the court stayed this portion of the decision pending appeal," EFF said.