Between 2003 and 2011, the U.S. government issued nearly 300,000 National Security Letters (NSLs), 97 percent of which came with nondisclosure orders, Wired reports.
If you work for a bank, telephone company, or Internet Service Provider, there's a good chance that your company has been on the receiving end of an NSL. Until last week, you probably never spoke of the NSL based on the nondiclosure order.
Should that policy change?
In case you haven't heard, U.S. District Judge Susan Illston in San Francisco ordered the government to stop issuing NSLs, declaring the letters unconstitutional. The government will have 90 days to appeal her decision to the Ninth Circuit Court of Appeals.
An unnamed telecommunications company, represented by the Electronic Frontier Foundation (EFF), challenged the provision after it received an NSL demanding "subscriber information" from the company, and warned that the letter's disclosure could result "in a danger to the United States," among other ramifications, Reuters reports. The telcomm, "adamant about its desire to speak publicly about the fact that it received the NSL at issue to further inform the ongoing public debate" about NSLs, challenged the NSL provisions.
The EFF explains that Judge Illston held that the gag order provisions of the statute violate the First Amendment and that the review procedures violate separation of powers. Because those provisions were not separable from the rest of the statute, Judge Illston declared the entire statute unconstitutional.
But before you start shouting the news of your company's past or present NSLs from the rooftops, keep in mind that Judge Illston didn't find the idea of secrecy surrounding NSLs completely bogus. She conceded that the "government has a strong argument that allowing the government to prohibit recipients of NSLs from disclosing the specific information sought in NSLs to either the targets or the public."
If Judge Illston's order survives Ninth Circuit review, your company should create an internal policy regarding how it will handle NSLs and what information from an NSL it is willing to disclose.
- In re: 2011 National Security Letter (Electronic Frontier Foundation)
- Financial Institutions Prevail on Absent 'Plus Factors' (FindLaw's In House)
- Businesses Weigh in on DOMA with Amicus Brief (FindLaw's In House)
- Google Transparency Reveals FBI's Use of National Security Letters (FindLaw's Technologist)